THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
EVIDENCE
OTTAWA, Thursday, April 11, 2024
The Standing Senate Committee on Energy, the Environment and Natural Resources met with video conference this day at 9:15 a.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; and, in camera, to discuss committee business.
Senator Paul J. Massicotte (Chair) in the chair.
The Chair: Honourable senators, my name is Paul J. Massicotte. I am a senator from Quebec and the chair of the committee.
This is a meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.
I would like to begin with a reminder. I would ask that, before asking and answering questions, committee members and witnesses in the room please refrain from leaning in too close to the microphone or removing their earpieces when doing so. This will avoid any sound feedback that could negatively impact the committee staff in the room.
I will now ask my fellow committee members to introduce themselves, beginning with the senator to my right.
Senator Verner: I am Josée Verner from Quebec.
Senator Miville-Dechêne: I am Julie Miville-Dechêne from Quebec.
Senator White: Judy White, Province of Newfoundland and Labrador.
Senator Sorensen: Karen Sorensen, Alberta.
Senator McBean: Marnie McBean, Ontario.
Senator Cardozo: Andrew Cardozo from Ontario.
Senator Wells: David Wells, Newfoundland and Labrador.
[Translation]
Senator Galvez: I am Rosa Galvez from Quebec.
The Chair: Today, the committee is continuing 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. Before I introduce the witnesses, I’d like to ask the committee members to not rush out at the end of the meeting, because we have a few small items to discuss.
With us today are Madeleine Redfern, Chief Operating Officer and Northern Director, Arctic360, CanArctic Inuit Networks Inc., and Liam Smith, lawyer, Smith Law Droit Inc.
Welcome and thank you for accepting the committee’s invitation. You will each have five minutes for your opening remarks. We will start with you, Ms. Redfern, followed by Mr. Smith.
[English]
Madeleine Redfern, Northern Director, Arctic360 and Chief Operating Officer, CanArctic Inuit Networks Inc.: Good morning, and thank you for the invitation to come before this committee to share some of my thoughts, experiences and recommendations as they relate to environmental racism and environmental justice.
I have worked and volunteered in a number of positions, including being a board member of Ecojustice, President of Amautiit, which is the Nunavut Inuit Women’s Association, and Director of the Inuit Business Council. I was also the Mayor of Iqaluit for two terms as well as the President of the Nunavut Association of Municipalities. Lastly, I was the Executive Director of the Qikiqtani Truth Commission that led a historic inquiry into policies and decisions and their effects on Inuit from 1950 to 1975.
I am an Indigenous women in tech, working in technologies with transformative potential in telecommunications, digital infrastructure, energy and transportation. I have over 30 years of professional experience.
I have witnessed environmental racism in many forms. It takes all shapes and sizes, some more obvious — at least from an Indigenous or northern perspective — including from the Marine Mammal Protection Act, the Marine Mammal Regulations, the Migratory Birds Convention Act, the federal Wastewater Systems Effluent Regulations and the National Guidelines for Hazardous Waste Landfills with respect to the distance of landfills to airports — as well as the challenges of having to call a state of emergency as mayor when there was insufficient water and the inability to get the necessary funding from either the territorial or federal governments to address it. At the same time, the city and its officials were threatened with fines and jail time, despite the fact that we were doing our best and had very few resources. That is just to name a few examples.
I’ve interacted with many other local and Indigenous leaders in Nunavut and across the circumpolar North, as well as Indigenous leaders in North America, South America and Africa. What I’ve learned is that as minorities, we often face the exact same problem — systemic discrimination, not just toward us as individual minorities, but also prevalent attitudes that go against our region, communities and peoples. The level of disregard or disdain when we brought our issues to other levels of government was palpable.
In my engagements and interventions with the United Nations on disaster risk mitigation and response, the recommendations of my fellow Indigenous leaders and I — made to ensure that our peoples’ perspectives, knowledge and recommendations were included in assessing, planning and preparing for disasters — were often tokenized then disregarded, despite the fact that we provided numerous solid examples of the breadth and depth of our localized knowledge about climatic and environmental risks and our peoples’ way of adapting to or mitigating those risks. We might have been invited, as I said earlier, but in the end, our contributions were often deemed meaningless.
As I said earlier, environmental racism comes in all forms and in ways that are not always obvious. One is through lack of adequate infrastructure, lack of recognition of or investment in our people to increase capacity and the lack of funding for programs. It comes not only from federal regulations but also the federal funding programs and federal policies that do not always fit or are inappropriate — or worse, put those of us who are minorities or already marginalized even more at risk. The presumption that laws, policies and programs are neutral can actually lead to inequality and inequity. In a worst-case scenario, they may not be seen as intentionally racist, but by effect and outcome, they are.
If the laws, policies and programs have a disproportionately negative impact, especially where, as I said earlier, we’re most at risk, that is something that should be considered, because we can prove that there’s often a direct correlation or causation based on racism that leads to these racist outcomes.
How do we address this problem? The simple answer is through inclusion: meaningful participation by minorities throughout the process, from within and not only from outside. It is also about how one engages and where. Only members of marginalized, minority or Indigenous peoples can or should represent themselves. I am shocked by how frequently we minorities are represented by others who advocate or speak on our behalf.
Ask minorities what the barriers to meaningful participation are and we will tell you. We will tell you what is needed and how to do things differently so that we are not just comfortable participating but actually respected, and our participation is reflected in the final product.
I thank you for the invitation to speak to you about environmental racism and how we can achieve environmental justice. As I was speaking with Liam Smith about earlier, the act itself indicates good intention. The reality is that environmental racism exists through the outcomes and interpretation of many pieces of federal legislation, federal policies and federal programs. Unfortunately, they have unintentionally racist consequences and outcomes, so the act being proposed is possibly a good first step. I hope it’s not a hollow act in and of itself. It needs to trigger how our federal department acts in so many different areas that have an environmental impact. It could affect our lives positively or negatively. Thank you.
[Translation]
The Chair: Thank you, Ms. Redfern.
Mr. Liam Smith, lawyer, Smith Law Droit Inc.: Good morning, Mr. Chair, and thank you very much for inviting me to be here today. This is my first appearance before a Senate committee. It’s truly an honour to be here.
Allow me to introduce myself, first in Mi’kmaq and then in French. After that, I will switch to English.
[Mi’kmaq spoken]
My name is Liam Smith, and I’m a lawyer. I am from Cape Breton, Nova Scotia. I’ve read Bill C-226, and, as a lawyer, I can tell you that it doesn’t have a lot of substance, frankly. However, as a witness, I will share my views on how the bill may impact Indigenous peoples.
[English]
I am not an Aboriginal person, but I am a lawyer, and since approximately 2013, my main interest and focus in my studies and now in my practice as a lawyer is helping Indigenous nations and people, and specifically helping Indigenous children and youth. At the outset of my career, I focused on how to remedy Indigenous youth suicide. It is a really traumatic epidemic across the country. In my practice, we specifically look at how we can use the law to remedy this issue, and what solutions we can use within the legislative frameworks that we have here in Canada, within constitutional law, to help Indigenous communities increase their capacity to intergenerationally transmit their languages, cultures and identities.
Canada has a negative history of environmental racism. From my perspective as a witness, that is a fact. I can speak personally of my experience as a Nova Scotian and some of the deleterious environmental legacies we have in Nova Scotia. As I said, I’m not an Indigenous person, but I will try to shed some light on how environmental racism impacts Indigenous peoples and other minority societies within Canada.
I am grateful to be appearing next to my colleague Madeleine Redfern. She has an excellent wealth of knowledge on this issue, and it’s an honour to be here today.
[Translation]
As a lawyer, I read the bill, and it has very little substance. It’s a plan to make a plan. It’s too bad, but at least it’s a step in the right direction. I will say that the bill is well-intentioned, given the disastrous legacy of government in this area, especially when it comes to Indigenous peoples.
In Nova Scotia, we have a site known as A’se’k, or Boat Harbour in English. It’s located next to the home of the Pictou Landing First Nation. I’ll give you some background on Boat Harbour.
[English]
It’s a naturally occurring tidal estuary covering about 350 acres beside Pictou Landing First Nation. It is a legacy contaminated site, and I understand it is one of the impetuses that brought about this bill.
A’se’k is planning to undergo a massive remediation, and the deleterious environmental legacy of A’se’k is fundamentally tied to Pictou Landing First Nation, a community of approximately 500 Mi’kmaq, or L’nu, people. They traditionally would have used A’se’k as the site where they performed ceremonies, told stories, gathered medicines, hunted, fished and basically survived through its ecology.
In the early 1920s in Nova Scotia, the federal and provincial governments permitted a craft pulp and paper mill and later a chlor-alkali chlorine fabrication plant to discharge approximately 85 million litres, or 75,000 cubic metres, of wastewater effluent into the medicine chest for this First Nation.
The environmental studies that are now being undertaken to execute the remediation of this site have established that there are contaminants such as cadmium, mercury, lead, chlorinated dioxins and furans, polycyclic aromatic hydrocarbons, petroleum hydrocarbons and zinc in quantities that all exceed the Canadian Council of Ministers of the Environment’s probable effect guidelines for posing severe ecological health risks. This is one example of many present across Canada where minority and Indigenous groups — also, I have some knowledge of and can speak briefly on the African Nova Scotian issue, where historically dumps have been located next to African Nova Scotian communities. This is a pattern that is inculcated within Canada’s legacy of colonialism.
As a brief example that I can provide as well —
[Translation]
As you can tell, I am an anglophone who speaks French. I learned French from the Acadians, and I lived with that community for about 10 years. I know the history of Acadians, and I now teach Indigenous rights and treaty rights in the law faculty at Université de Moncton.
Senator Miville-Dechêne: You are great.
Mr. Smith: Thank you very much, senator.
The Acadians were expelled in 1755, about eight years after the British won the Battle of Quebec and after the Conquest of New France in 1763. The Acadians were allowed to return to their land and heritage, but only in areas that were not conducive to farming.
They had to live in rocky areas. They were not people who fished, but since the settlers had driven the Acadians out to coastal areas, they had to fish for their livelihoods. They lived far away and weren’t permitted to go back to their homes.
I think that history shows that the government often followed the same model — severing the connection between minority peoples and their lands. That’s the same thing we see with Indigenous peoples.
[English]
Canada’s legacy of environmental racism deliberately severs connections to traditional territory.
If there is one thing I would like to see in Bill C-226 for First Nations, as a lawyer — even in the preamble — is a reference to the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP. As a lawyer, that would be something I could use. As the project of law currently stands, there is nothing I could litigate or use to help my clients. As a principle of legislative redaction or writing, you must have a relatively sound knowledge of all the corpus of legislation on a subject.
Something as simple as a reference and a preamble to UNDRIP, or to the new Act respecting First Nations, Inuit and Métis children, youth and families which recognizes connection to traditional territory as one of the factors that must be considered in determining the best interests of Indigenous children, would be something that is actually tangible. It is nothing more than an insertion into a preamble, which generally helps us understand the context or purpose of a bill. It would show why this bill is here and why there is a solid intention from the government, Parliament and Senate to do something to help the affected communities.
In my notes, I have a few other examples of environmental racism that I can put on the record.
In Madawaska First Nation in New Brunswick, the effluent pipeline crossing the reserve leaked, dumping pulp effluent coming in from Maine. Also, Africville is an African Nova Scotian community with a dump located next to where everyone lives.
Other First Nations in Atlantic Canada are forced to build their infrastructure on dumps. Even under the new CHRT 41 orders that ordered Canada to stop the discrimination against Indigenous children in care and ensure it never happens again, we are still seeing the effects of Canada’s environmentally racist legislation and policies and, frankly, its paternalism, in trying to have First Nations either build on dumps or overcome very onerous hurdles with respect to environmental permitting before capital infrastructure can be built.
A small subdivision in Eskasoni First Nation was also built alongside a dump from the colonization area. Projects requiring environmental assessment only combat environmental racism to a certain extent. They are still inculcated with a lot of the colonial values that come with Canada’s colonial history.
Now, in the UNDRIP era, even from a First Nations perspective in the post-1982 era, when Aboriginal and treaty rights are now recognized and affirmed as an integral part of the Constitution of Canada, I think such policies and actions are fundamentally inconsistent with the purpose of section 35 of the Constitution Act, 1982.
Today, I hope to provide some information that will help the Senate do their job. I’m here to help however I can.
[Translation]
Thank you all.
The Chair: Thank you. We will now move into the question-and-answer portion.
[English]
Senator Sorensen: Hello, Ms. Redfern. It is nice to see you again. I’ve heard you speak before. As noted, you have a very impressive career. I thought I should mention that there’s a seat on the Senate out of Nunavut. The application is online.
Mr. Smith, welcome. We are a nice group of people.
I understand your comments about what the bill actually says. Senator McCallum, who is the sponsor of the bill, would speak passionately to that; however, she is not here today. I don’t know if any of the other senators can speak more to it. I know Elizabeth May’s intent as well. You said it correctly. It is to show good intention.
From my perspective, even the term “environmental racism” is not a common, well-known term. When I talk to people who are nowhere near this place about my work in committees, they say “environmental racism” like it is a new concept. I believe it has merit and I agree there is no meat on the bones at this point.
To that point, I ask this question of both of you: There is an emphasis on consultation in the bill, as there should be, so can you give us an idea of what those consultations should look like? How do you think community-based organizations and community members can best collaborate with and advise the federal government in the development of a national strategy?
Honestly, the word “consultation” is used so often, I wish we had some formula as to what that should be. When you ask people, “Did you consult?” I don’t know what that means half the time. I would like your opinions on what consultation should look like to add more detail to the bill.
Ms. Redfern: I agree with you. “Consultation” has an important and distinctly different meaning than “engagement” or “information session.” They are often confused.
For it to be meaningful, consultation must mean you are listening, learning and what you are proposing is being adopted as a result of that engagement. Too often, in my experience, a consultation is just an information session. “Thank you. We are here. We have listened to you but we are still going to do what we are going to do.” It is rote. It is a tick-box exercise.
As an Indigenous person from Nunavut, the challenge is that many of our community members are fatigued from never-ending consultation. Also, even with major projects or initiatives, we find that our communities are not provided information beforehand, other than the date and a public venue to show up to, if they do show up. It is very formal rather than something more comfortable.
Also, the community members or groups are often not provided any resources to prepare for consultation, such as access to lawyers or people who work in the policy field, to be able to understand what’s being proposed and therefore prepare and present a formal response on why and how a proposed initiative could or should proceed and what adjustments are necessary.
That is definitely a big challenge and problem. More often than not, since we have a legacy of decades of very inadequate and unacceptable levels of consultation, many of our people are not even prepared to be consulted anymore.
Senator Sorensen: Thank you.
Mr. Smith, anything to add?
Mr. Smith: Yes. As I mentioned in my introduction, I am teaching Aboriginal and treaty rights this semester at the University of Moncton’s law faculty. I teach on the duty to consult and accommodate. I can provide a little bit of where that framework comes from, how it works and how it should be implemented.
First, yes, I do think the actions undertaken in this bill likely triggered the duty to consult and accommodate. It is a very low threshold, but it helps to understand why there is a constitutional duty to consult and accommodate. It comes from the constitutional principle called the honour of the Crown. It is related to the fiduciary relationship between the Crown and First Nations people. It is distinct. It gives rise to distinct obligations at law incumbent upon the Crown. These are constitutional obligations.
We first had the Supreme Court of Canada tell us that the duty to consult and accommodate exists in 2004 and 2005 in a trilogy of decisions starting with the Haida logging case. This is how it works: If there is a governmental action — even a planned governmental action — which risks having some impact on asserted or proven Aboriginal treaty rights, then there is a constitutional obligation, a positive obligation, incumbent upon the Crown to consult and accommodate around how this will impact the rights.
There is a large spectrum that this can fall on. There are usually two factors that must be considered when determining where on the spectrum the obligation to consult and accommodate falls.
The first factor that the Supreme Court of Canada tells us must be considered is the strength of the asserted or proven Aboriginal right. The second factor is the possible prejudicial effect of the planned or government action impacting on these Aboriginal and treaty rights.
For example, if there is already an established Aboriginal title to a piece of territory, that is a strong Aboriginal right. If the planned governmental action will have a severe prejudicial effect on this established Aboriginal right, then we would understand that the obligation to consult and accommodate would fall on the “deep consultation” side of the spectrum. What that practically implicates is that there must be a fully fleshed-out consultation. It can’t just be a community engagement session where pamphlets are passed out, everyone goes home and the project goes ahead anyway. It could even require that the Crown provide funding for lawyers — as was mentioned — but potentially also for independent scientific minds to verify the evidence being put before the First Nation.
On the other side of the spectrum, if it’s just a light consultation, we would understand those types of circumstances arise when there’s an asserted but not yet proven Aboriginal right — possibly even an incidental right that’s required to exercise the Aboriginal right — and it’s not exactly on the severe end of the spectrum with respect to these Aboriginal rights, and so the planned government action might only have a minimal effect on it. In those types of consultations, there could just be — like I said — a community engagement session, or it could just be keeping the First Nations informed.
That’s the legal framework for how it works. Now, with the United Nations Declaration on the Rights of Indigenous Peoples Act, in Canada, we have this new concept that ostensibly goes further than consultation, and it’s free, prior and informed consent. In the case of this bill, yes, considering that the First Nations, even those with Aboriginal title, were impacted by Canada’s colonial legacy of environmental racism, in my opinion, there is definitely a triggered duty to consult and accommodate. It depends on how much the government action may impact certain Aboriginal rights, such as the right to hunt and fish, Aboriginal title or — as I mentioned at the outset — the right to transmit your identity to future generations. If connection to traditional territories is an integral part of identity, it seems like there is a very strong case for the government having a duty to consult and accommodate when it’s planning to undertake actions such as the ones this bill sets out.
I hope that helps.
Senator Sorensen: Yes, very much. Thank you, sir.
Mr. Smith: It’s the honour of the Crown.
Senator White: I have two questions, one for each of the panellists. Thank you very much for being here today. I certainly enjoyed your testimony.
My first question is for Ms. Redfern. When it comes to environmental risk and promoting environmental justice, we know that challenges for the communities in the North are compounded because the impacts of climate change are more severe — this year, it was nearly four times faster than the rest of the world — and due to increased mining activity and a lack of basic infrastructure.
You indicated that this bill has good intentions, but are these intentions good enough for Indigenous communities in the Arctic? If not, do you have any recommendations on what we should be adding or amending?
Ms. Redfern: In my experience, both when I was mayor and now in the private sector, quite a number of federal contracts or contribution agreements require us to assess a climate change lens consideration. I sometimes found that was difficult because we had such limited resources at the municipal level, and I would conjecture the same difficulty exists for First Nations bands and nations. We know what the climate change reality is and what changes are upon us, but even presenting that evidence in a way that satisfied the bureaucrats was often challenging.
I’ll give you a specific example. I stated that I had to declare a state of emergency for a capital city in Canada because we had insufficient water to meet the needs of our community that year. Actually, that state of emergency is now in, I think, its seventh year, and it’s ongoing. I had to repeatedly try to contact many different levels of government, whether territorial or federal — and especially the Department of the Environment and Climate Change, who you would assume would be the most sympathetic. I was bounced around like a Ping-Pong ball, going from one person to the next because this or that program didn’t fit.
I remember that the Northwest Territories’ municipal association determined that there were almost 60 different programs, but almost all of them were focused on reducing greenhouse gas emissions, which is important but didn’t meet our current, immediate need, which was climate change related: not having enough precipitation. We came across bureaucrats who told us that the Arctic is melting so we have lots of water. I had to prove that the precipitation levels over the years were actually why and how we were dealing with a climate change crisis. There were more obstacles than necessary. Literally, we were able to get only a tiny percentage — I would estimate less than 10% — of what we needed financially to reach a solution for just that year, which was to buy some hoses, get some technical engineers and try to draw water from another lake to fill our reservoir. That was that year.
At the same time, we were trying to find enough resources to actually complete our water licence application and — as I said earlier — were facing fines and even threatened with jail time. We were telling them that we needed help. We said, “We’re dealing with a crisis, and you’re not helping.”
With respect to what can and should be done to help northern, remote and Indigenous communities, instead of pushing us away when we need help and can prove it, offer to meet and figure out how to help us so that we can actually find a solution where our community has adequate water.
It’s a very complicated answer, because it’s so multi-faceted. That’s just one example. If you talk to Liam and many others from across the North, any mayor or Indigenous leader, they will immediately tell you what they’re dealing with regarding environmental issues and the fact that they usually cannot find funding, resources or solutions from any level of government to get them to where they need to be.
It’s so prevalent. This act has good intentions, but environmental racism is so pervasive and happens on all levels, so it’s hard to even try to make people see it or trigger them to put their minds to it. If someone says they have an environmental problem, we don’t tend to call out the “R” word — to say that it’s racist. But I think we’re starting to become more comfortable actually saying it is racist, because our people are feeling the negative impacts as a result.
Senator White: Thank you.
My next question is to Mr. Smith. I know this is your first time presenting. I think you did a great job. Thank you for laying out consultations and the duty to consult.
This bill requires the minister to hold a consultation process with any interested persons, bodies, organizations and communities. I’m wondering what that would look like practically speaking, and how can we ensure a comprehensive consultation process, particularly as it relates to including Indigenous peoples? Do you have any recommendations for how we can promote that, to ensure Indigenous communities are involved and the consultation process is as inclusive as promised?
Mr. Smith: Thank you for the question, Senator White. I mentioned the United Nations Declaration on the Rights of Indigenous Peoples as having several solutions. To answer your question, two articles in particular come to mind. Article 19 of UNDRIP requires free, prior and informed consent before states implement legislative or administrative measures that impact or affect Indigenous rights. Article 32 of UNDRIP requires free, prior and informed consent before states approve any project which affects Indigenous people’s lands, territories or other resources.
Interestingly, there was a Supreme Court of Canada decision released this year on February 7, 2024. It was a reference out of the Court of Appeal of Quebec on An Act respecting First Nations, Inuit and Métis children, youth and families. That is an interesting piece of legislation because it’s the first time Parliament has ever legislated to say that section 35 rights include rights to self-determination, including self-government. The Supreme Court of Canada did not tell us if that is correct or not, but it said that Canada has taken this position; it is now bound by the honour of the Crown to act in a way that is consistent with that position until a court tells us otherwise, if section 35 includes self-government rights.
That said, in this legislation, practically, Canada has already taken the position in law that section 35 rights include rights to self-government. So a very simple thing that could be done in this piece of legislation is to include a clause recognizing that Indigenous nations have authority to enact or implement Indigenous laws around the environment and any assessment processes.
There’s often a paternalistic conception that Indigenous peoples do not have capacity.
[Translation]
I don’t believe that’s true. Indigenous peoples and nations have significant capacity, but it’s just disregarded or suppressed.
[English]
If you were to empower First Nations to make their own decisions rather than — as my colleague Madeleine Redfern has mentioned — having a bureaucrat who has never been there impose on them what the bureaucrat thinks they need, you empower them to make decisions for themselves. They will take you where you want to go as opposed to trying to lead them to water by dangling a bit of money in front of them, saying in order to get this money you have to do X, Y and Z, and once you do X, Y and Z, there are six other questions that have to be answered.
It’s more in working in reconciliation and partnership as nation to nation than trying to impose upon them what they have to do.
Senator Cardozo: I have a couple of questions. If you don’t mind, I want to go back to square one on the concept of environmental racism. I say this because, as I observe this field, I reflect on how, in the 1970s, 1980s and 1990s, there was a sense that there is something called racism and we have to deal with it. Somehow, after the year 2000, there seemed to be pushback and a questioning of racism. I find that when we talk about racism in general, one has to go back to square one, explain it in clear and simple terms and explain that it’s real. You talked a bit about this. Ms. Redfern, I’m paraphrasing you here, but you said something to the effect that it’s not necessarily a stated intention; it’s by effect.
Could you explain that a bit more? I want to add one more point in terms of context. I see the same kind of discussion happening in the environmental field, where we’re having these discussions about climate change and carbon and people don’t know or have forgotten what the problem with carbon is and why we’re doing this whole thing. Sometimes it’s not a bad thing to go back to square one and explain these concepts again. But environmental racism is a newer term. I wonder if you could explain it a little more, not just for us but for the average person out there who is raising an eyebrow at that term.
Ms. Redfern: I’m going to give you two historical but still ongoing effects of environmental racism. In the 1970s, there was a big push to ban seal hunts. Even now, while there is recognition of the value of and need for Indigenous seal hunts, the market has been killed. That has had a real economic impact on my people. There’s an abundance of seals, about 6 million or more, so people are seriously outnumbered by seals in the North. People can become very emotional and passionate about a cause but are sometimes misinformed. Again, the intention was to save the very cute little white furry baby seals, but for the most part, our people hunt seals and they’re an important part of our diet. My 100-mile diet looks very different than that of someone in Ottawa, Toronto or Winnipeg. Our diets consist of seals, caribou, whales and polar bears.
I remember not very long ago there was intense advocacy, based on climate change, to save the polar bears, and that by 2025, which is actually next year, all polar bears would basically be gone because of climate change. Thankfully, that’s not the case. There are now more polar bears instead of fewer.
Evidence-based decision making is a really important consideration. With respect to the Migratory Birds Convention Act, thankfully we have an exemption in our land claim that allows our people to harvest birds effectively year-round. But the impact of that act in the 1950s was that birds could be hunted in the fall when migrating back down south, and they were, but our people were not allowed to hunt or harvest the birds when they come to our region, which is in the spring and summer.
There are impacts from those types of legislation, which for the most part remain in place, even though we have the land claim agreement that constitutionally trumps any law that violates our rights. For example, since 1999, with the creation of our territory, a number of our people have been charged for violating the Marine Mammal Regulations or the Migratory Birds Convention Act. What happens is that government officials take their piece of legislation as the Bible. They don’t take our land claim agreement as the Bible or care that it states that our ways and laws trump theirs.
So our people are forced to go to court in a quasi-criminal circumstance to try to assert their rights. I’ve even seen our hunters try to plead guilty just to get rid of the charges because the process of going through court is so traumatic and stressful. It takes years. I remember one judge actually saying, “No, you have a constitutional right. You have a land claim right. I reject your plea,” repeatedly, over two years.
Thankfully, in one of those whale cases where someone was hunting without a tag, even though our land claim states that there are not supposed to be any barriers to exercising our rights and that effectively a tag is a barrier — it turned out that the Marine Mammal Regulations, the numbers that were stated for a whale quota in those communities of the Kivalliq, Taloyoak, Gjoa Haven — that’s the Kitikmeot — had been set over 30 years ago. Those numbers were just grabbed from nowhere. There was no scientific or evidence-based reason to limit the whale hunt to the numbers that they were limited to. Thankfully, the judge deemed that the evidence collected to charge our whalers and hunters trying to feed their families was incorrectly obtained and threw it out on that technicality, rather than our constitutional right.
I’ve answered this question in a very long, circuitous way. My apologies. But it speaks to how a lot of these laws — especially federal laws, because whales are federally protected, as are polar bears — come from southern, urban, European values rather than ours.
Yes, I understand the value and importance of polar bears and whales from that perspective — they’re so important. But they’re important to us too, and we hunt them sustainably, because it is part of our culture and because we need to feed our families. It is highly nutritious. One ounce or one square inch of whale skin has the same nutritional value as an orange in terms of vitamin C. I love Alaska. They show the nutritional value of all their country food. It looks like what you would find on a carton of juice.
The impacts of these laws basically put our people at risk of being criminals. They put our people at risk because they get charged, even though we have those constitutionally protected treaty rights. You have bureaucrats who don’t know and don’t care, and those laws haven’t been amended to comply with our laws and our treaty. So when you have that conflict, as I said, it harms our people.
Senator Cardozo: The other issue we have to deal with regarding bills is a sort of administrative issue. When a bill comes to us from the House of Commons, if we amend it, it has to go back to the House of Commons because both houses have to pass the exact same law. There is always this conundrum that we face. The Senate, by the way, is amending about 50% of the bills that come before us, which is way up from 1% or 2% prior to 2015. The conundrum is that if we amend anything and send it back, there is always the possibility that it gets lost, doesn’t make it back and then goes away. The judgment call we have to make is whether it is worth going for that perfection rather than going with something pretty good and moving along. Given that this is the framework to actually make the laws, do you think we should go with this as it is and get moving, or is it worth taking the risk? My question is for either of you.
Mr. Smith: That’s a judgment call. I really can’t make it. I see the practical impact of that. Usually, in my experience, if I am going to do something, I try to do it right the first time. This law doesn’t do much at all. You asked through your question, senator, whether we should get going. I don’t think that this will go very far unless amendments are made.
Senator Cardozo: Thank you.
Senator Miville-Dechêne: Thank you for being here. This is very enlightening. Thank you, Ms. Redfern, for your concrete example. This talks to me; I understand it. And thank you, Mr. Smith, for your engagement. It is quite powerful.
I’m a very pragmatic senator. Here, we see a lot of frameworks, bills of that nature, going through. They are very symbolic, in a way. They are a way of shedding light on real problems. We do it for different sicknesses, we do it for all kinds of things, and I’m always wondering what happens at the other end because we rarely get feedback on what is happening.
To continue on what my colleague was saying, you are saying that we should put the United Nations Declaration on the Rights of Indigenous Peoples in the preamble. From what I understand, preambles are not law. You are a lawyer; I am not. I would like to hear from you. Will it really change the nature of this framework, which basically depends on the goodwill of people to put the declaration up there?
Is it better to continue with this bill that you say a first good step? Or should we start over, which seems difficult at this point?
Mr. Smith: Thank you, senator, for the question. I can start by perhaps shedding light on the purpose of a preamble.
[Translation]
In Canada, we prefer to take a purposive view.
[English]
Or a purpose of interpretation of legislation, which is to say that we presume that legislation is enacted for a reason that is remedial. Usually, that requires the courts to go into an exercise to evaluate the purpose of the legislation. Section 13 of the Interpretation Act says the preamble is instructive as to the purport and object of a certain piece of legislation. So there is that, and it’s very useful for lawyers to know the purpose when we are arguing things so that we can say what the law was intended to do or why an action is falling short of attaining its purpose.
In international public law through the United Nations system, preambles have a whole different weight in terms of interpretive value. The way the United Nations works, things usually flow up through the committees to the General Assembly, and when enacted or declared through the General Assembly, it is at the committee stage that they insert certain sections into the preamble. When you look at the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, the preamble, while it may not be law, has more force than a standard preamble within Canadian or provincial legislation. Preambles are very valuable and are not to be discredited.
Senator Miville-Dechêne: Ms. Redfern, could you speak to the larger question of whether that matters or is just one more promise?
Ms. Redfern: What I would add to what Liam has said — because I am in full agreement, have a law agree and clerked at the Supreme Court of Canada — is, yes, lawyers are often arguing or putting forward their own positions as to the purpose of specific legislation. But I would say it goes beyond that. It is not just a political or legal indication or intention of the bill. For the most part, if it is working properly, it is also guiding those who actually have to implement the law, like civil servants, but it also indicates to civil society who the law is impacting — which might be businesses or individuals — why this law is important and what its intended outcome is. It speaks to that.
The absence of something like UNDRIP in the preamble indicates to everyone that it wasn’t that important. It takes another meaning that it is broad in societal values. If you actually incorporate recognition that this is targeted to ameliorate or remediate and that we recognize that there are minorities — including Indigenous minorities — who are negatively impacted by environmental racism, it allows those people who read the bill and make the bill more than what it currently is to know that it really is an issue that this government recognizes needs to be addressed.
Do we start over? I would say no. Can we improve what we currently have? Yes. I’m always of the belief that everything in life, every piece of legislation and policy, can and should be improved.
The Norwegians, who are often touted as having such a perfect system, are saying, “No. Everything changes and evolves.” As a result, you constantly have to put your mind to it, assess and evaluate — which includes external evaluation, because the problem with internal evaluation is that we tend to presume we are good people trying to do good things and, therefore, with good intentions will come good outcomes. The reality is that is often not the case. Good intentions — what do they say — pave the way to hell? That’s what I remember. The road to hell is paved with good intentions.
The only people who can tell you where it is not working as intended are those who are being negatively impacted. We need to engage them and also feel uncomfortable — which is so un-Canadian. The most defining thing about being Canadian is the idea that you should not make anyone feel uncomfortable. But we need to allow ourselves to feel uncomfortable because that’s the only way we can address the problems.
Senator Miville-Dechêne: Is the notion of environmental racism in UNDRIP?
Ms. Redfern: It recognizes that racism is prevalent in society and within government and attempts to address inherent racism in all its provisions. It recognizes environmental racism as a problem.
Senator Miville-Dechêne: Is it written?
Ms. Redfern: Not specifically environmental racism in that way, but I would say there are clear indications that it is trying to address environmental racism.
Senator Galvez: I have my own question, but I also have a question from Senator McCallum, if you allow me to —
The Chair: Go ahead.
Senator Galvez: The first time I heard about environmental racism and environmental justice, it was in 2005 when Hurricane Katrina hit New Orleans. I think that’s considered ground zero for environmental justice. The fact that we didn’t call it environmental racism like that — it was obvious, and I know it was a matter of transparency and a lack of communication because I worked on that case. The U.S. Army, U.S. government, mayors, local people, petroleum companies, banks and insurance companies knew — everybody knew that there was a cancer hiding where very low-income, predominantly Black Americans were living.
What happened after that was even worse, because it was not just the fact that Katrina erased everything, but that they expelled everybody from that place in order to create more petroleum plants. There were already 125 petroleum companies there.
I know that the terms may sound new, but this is actually happening and — as you have brilliantly shown — has existed for so long.
I want to make a clarification for your understanding that, despite the fact that this bill is called “C,” meaning it came from the other place, it started here in the Senate. As senators, we have to be very creative in order to not move money.
You are absolutely right that we all face this, that we cannot move money and therefore people believe our bills don’t have meat or don’t have a grip because we cannot move money. That’s what I am saying. We have to be very creative in how we put the things. Before you arrived, there were other witnesses who made three suggestions, but I really want to have your opinion on this.
We can put in meat by, yes, putting in the preamble the reference to existing laws. That doesn’t create money. It exists there, and these bills have their own budgets. So one is UNDRIP. A second is the Canadian Environmental Protection Act, or CEPA. A third is the Impact Assessment Act, the modernization. These three are there; we passed them. I think at this point we can add, “Whereas the Government of Canada has passed this, this and this,” and so on.
The other thing that I raise —
The Chair: Is there a question?
Senator Galvez: Yes, of course, I want them to tell me yes or no —
Senator Wells: This is from Senator McCallum.
Senator Galvez: Yes, exactly, it is the preamble of my question, which is the soul. I am asking if these can be amendments; that’s my question.
The second point is there a differentiation that needs to be made between the legacy sites and the prevention of the new sites. We cannot melt both of them in the same pot because they are completely different. There are issues in so many places already, Grassy Narrows, Fort Chipewyan and so on, and then there is the issue of the prevention of pollution.
The third thing is that we have express wishes of outcomes, goals, and not reporting on this progress.
Of course, the bill is not mine and I cannot assume leadership on that, but I would like you to comment on these three points. Thank you, chair, for your patience, indulgence and comprehension.
Ms. Redfern: From an Indigenous and northern perspective, environmental racism is something that our people instantly felt and understood to be problematic from the first point of contact with Government of Canada officials, usually the RCMP, in the 1950s. This is because it was regarding the imposition and enforcement of those laws, whether they were about hunting birds out of season; feeding our dogs country food, though I don’t know what else we would feed them; hunting in protected areas like parks; or trading, selling or gifting country food, because all we were able to procure was subsistence food to prevent starvation.
So, while “environmental racism” as terminology is now understood, or coming to be understood, we have felt the effects of it for decades.
I’m not entirely sure what the question was. My apologies.
The Chair: You’re not alone.
Ms. Redfern: Yes. But also, we have definitely not only felt it in the past; we continue to feel it today.
Mr. Smith: To the first point, regarding amendments, we often discuss environmental racism through a bit of a different dialogue and that is with respect to protection against discrimination. Section 15 of the Canadian Charter of Rights and Freedoms provides that:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
In law, we call those the “enumerated grounds.” There are other analogous grounds that are recognized as grounds for discrimination.
So, if there can be references to other laws in order to strengthen this bill, section 15 of the Charter is a very good starting point. It is already Canada’s framework for addressing racism in a prevention-based way. Yes, there are many contaminated environmental legacy sites, and remediation must be done. There is other legislation that can work on that.
In terms of preventing future legislation, to recognize that there has been a disproportionate impact on minority communities, vulnerable groups and even impoverished people, you could also indicate that they may benefit from charter protections. Where I’m from, we had the most polluted site in North America, the Sydney Tar Ponds. There were a coal and steel plant and coke ovens, and they created two massive lakes filled with black sludge right next to a Black community. It was also where all the immigrants who worked in the coal mines and steel plants in Cape Breton came in. This was until the early 2000s, so there was almost 80 years of deleterious environmental legacy. It was positioned there because it was beside communities that maybe didn’t have the means or knowledge to fight it. At the time, it was more economically viable for industry.
At a certain point, you have to realize that these places are often put where they are because it is a cheaper way of doing business for those companies; sometimes they might even prefer to just pay the fine than lose on the investment risk. We have to get out ahead of that by saying it might be discriminatory unless they have done all the required steps through the environmental assessment process — there is also room for amelioration there, but it is a work in progress as well.
To your third point on the wishes of outcomes, I have read this bill and it will create a committee to study it; also, there will possibly be a committee that evaluates outcomes.
I suggest incorporating the communities that are most affected into the design of the metrics against which the outcomes will be evaluated. It’s not going to be a bureaucrat from Ottawa — or anywhere else, really — or an independent assessor from Toronto who knows how this impacts affected communities. Bring them in to design the evaluation metrics.
The Chair: Thank you very much.
Senator Wells: Thank you, witnesses, for your presentations so far. I have a question on the bill itself.
In our note, it says that the national strategy must include:
. . . measures that can be taken to advance environmental justice and assess, prevent and address environmental racism and that may include . . .
Then there are a number of things written, but one of them is “. . . compensation for individuals or communities . . .” Who would be responsible for that compensation? Would it be the companies that have the deleterious effect on the environment or the government that would control the regulator?
Ms. Redfern: That’s definitely a difficult question to answer because there is so much historical and current environmental racism. Who is on the hook for Giant Mine? Well, the company no longer exists, so the Government of Canada is trying to remediate the arsenic in Yellowknife to a cost of $1 billion-plus. That’s probably way more than the benefits the mine procured over that time.
Who is responsible for all the remediation requirements of the old U.S. military sites, of which one was remediated in my community? We have still have an old metal dump. Jurisdictionally, there have been huge disagreements between the municipality, the territorial government and the federal government over who is responsible, and all I see are those piles of toxic waste being moved around. Worse yet, some of the soil is actually being distributed into my community for roads or soil as a foundation for building houses and so on.
Some of it is going to be businesses, if they are around, but the problem is that most businesses will say they were compliant with the regulations or the law at that time. With respect to the sludge of the two lakes that have been polluted, there probably was some government participation that allowed the company to choose those locations and put their waste there.
I would conjecture that there are a lot of existing problems. “Who is responsible?” is one of the questions that the committee could assess, but more often than not, you’re not going to find a lot of existing businesses for the legacy problem sites.
For the current ones, again, businesses may prefer to pay a fine, but they were approved to do the work they did through, more often than not, existing regulation.
Mr. Smith: Thank you. I agree entirely with my colleague Madeleine Redfern. The first principle that comes to mind is one that is already enshrined in Canadian environmental law, and it’s the “polluter pays” principle. From an individual perspective, it is often extremely hard to establish causality — that is to say, for an individual claiming prejudice or damages, it is very hard to point the finger at exactly who is responsible.
There is a Supreme Court of Canada decision, Orphan Well Association v. Grant Thornton Ltd. from 2019, where the question similarly arose of who is responsible for the orphan wells left over in Alberta. The trustee in bankruptcy had a certain position, and they were saying that because the firm went bankrupt, there was no one left to require payment from, essentially. In this case, the Supreme Court of Canada essentially found that the trustee in bankruptcy was responsible for the cleanup and remediation of these sites.
It is not going to be one or the other, but, as my colleague Madeleine Redfern mentioned, there will be responsibility on the polluter. The “polluter pays” principle is a very common principle in Canadian and even international law, which came out of the 1992 Earth Summit in Rio de Janeiro. But there also need to be some procedural safeguards within the systems designed to deliver permits to firms that conduct activity that poses a substantial risk through the emission of pollution which may impact the health of people or the environment as a whole.
I am a bit biased. I like the concept of having a trust or something to that effect set up, because often these projects may span decades. We don’t know exactly at what point in time certain hazardous chemicals are polluting. There are definitely ways to figure that out. I think that’s what this section of the bill is designed to do: develop a future strategy that will help address or provide answers to these questions.
Senator McBean: Thank you so much. Your expertise and passion here have been so informative today.
Going right back to the beginning, Mr. Smith, when you said it is a plan to make a plan, Ms. Redfern, you were nodding like crazy. Both my questions are almost repetitive with respect to what’s going on. I’m either not listening, just wanting to hear myself talk or trying to drill down more. I hope it is the latter.
Ms. Redfern, is this really frustrating for you? Is it another layer of the onion? Does it do anything for you? At the beginning, you were saying, “Please, just provide meaningful inclusion when this happens,” because you said you and Indigenous communities are so tired of being asked and consulted. Is it a plan to make a plan? Are you thinking, “Not another one of these”? Is there a point to this for you?
Ms. Redfern: I was saying to Liam, and I often say to people, that by nature, I am an optimistic cynic. I have been around long enough. I’m always hopeful.
Senator McBean: You would be perfect here in the Senate, by the way.
Ms. Redfern: I don’t want to just be cynical. We have to start somewhere. This is better than where we were maybe a year ago insomuch as at least people are beginning to understand what environmental racism is, saying, “Oh, my God, I didn’t know,” and learning that it is not just historical. Yes, there are historical legacies of environmental racism. However, we are also making decisions now that are environmentally racist and harmful. We are trying to do good things around mitigating or adapting to climate change. Even some of the new technologies that we are deploying, whether they are solar panels, wind turbines or small modular reactors, we are trying to get to net zero. We will make mistakes, but I don’t think that we have thought through some of these things entirely.
To speak to a previous question, as someone who was formerly a mayor, I looked into these technologies. I was shocked to learn that there are toxins in solar panels and we have no plan in Canada for their proper disposal at the end of their life. They cannot and should not, under any circumstances, be going into our landfills as is.
Wind turbines, again, will require a huge amount of land space when they break or at the end of their life, and we are not properly planning for them.
Nuclear waste, of course, the Nuclear Waste Management Organization is attempting to address, and the Government of Canada promises that it will have a waste disposal site plan determined before the new small or micro modular reactors come online.
But where does this waste more often than not end up? My fear is that it is going to end up in predominantly rural, remote, northern or Indigenous parts of this country. I look to places such as Europe that have imposed a tax. The individual pays a tax up front. It is the same thing that we do for batteries, tires, appliances and electronics, but we have not done it for renewable energy at the individual or commercial levels. Nuclear is, by nature, toxic and problematic, and the federal government is dealing with it on our behalf.
To answer your question, thank God we’re starting to have this conversation. My hope is that through these discussions, we learn together where the problems are. We also need an inventory of our most problematic legacy and current activities or sites and to ensure that we put in place a proper plan to remediate those now and/or in the future, but that we’re also mindful that we are making mistakes and problems for ourselves, even right now, with well-intended actions in all sorts of areas.
Senator McBean: Thank you. It is a “journey of 1,000 miles starts with a step” kind of thing.
Mr. Smith, you brought up the constitutional principle of the honour of the Crown. If I wrote it down correctly, it’s the duty to consult and accommodate. Isn’t that exactly what Bill C-226 is? Are you trying to tell us it’s already in there and baked into the system?
Mr. Smith: I’m going to say no. First, the honour of the Crown is an underlying principle. It’s not codified. It gives rise to all sorts of constitutional obligations depending on the circumstance. Now, in law, we say it’s the bed from which all Crown obligations flow. The duty to consult and accommodate is one of these types of Crown obligations, but there are many others, depending. There is no sharp dealing, amongst other things. The Crown is expected to fulfill its promises.
The duty to consult and accommodate, while very important in itself, in my opinion, is a bit of a starting point to establish a system of dialogical governance. Now that Canada has taken the position in legislation that First Nations have inherent rights to self-determination, including self-governance, Bill C-226 remains in the Parliament and the Senate, and when it goes into force — if it goes into force — and is promulgated into law by the Governor General, that itself is not consultation, albeit I’m sure there might have been witnesses who were consulted throughout the process that the bill went through to get to third reading in the Senate. It is establishing a committee to study a problem. I agree that it is a very good first step. We need to have recognition that this is a problem. It is not consultation in and of itself. Consultation is a constitutional obligation that comes when the Crown plans to make a decision that may impact Aboriginal or treaty rights. Environmental racism almost undeniably has impacted environmental and treaty rights legacy, and it will likely continue to in the future.
Grassy Narrows First Nation was mentioned a moment ago. I know the next witness is supposed to be the Chief of Grassy Narrows First Nation. They have a very significant deleterious legacy of environmental racism there. I’m sad they were not able to put their evidence on record here today, but the bill is not consultation. The bill is a bill. It’s a law. It’s going to be passed and likely become force of law, which will then probably be enforced.
The Chair: Senator Galvez, I understand Senator McCallum has a question.
Senator Galvez: I’m going to read her question. Senator McCallum is the sponsor of the bill. This is her question. She says:
I have been advised by some senators that they disagree or don’t believe that environmental racism exists. As a result, it was advised to bring in very good witnesses for this committee to study. It seems that the term “environmental racism” is a new concept for many Canadians. That has been expressed in this very meeting. Yet it has existed for marginalized communities for the entirety of their lives. These impacted marginalized groups across the country have different histories which will require different solutions, including the uniqueness of the treaties of the First Nations. We don’t know what data has been collected to date that can be used to assist in this endeavour. We don’t know if there is the capability to do geographical mapping. To look at this issue in a fulsome way would realistically take more than one bill to correct this injustice. We are told there is very little meat on the bones of this bill. Most legislation is developed without input from the impacted people, and this is an opportunity for them to be involved from the beginning of this critical process.
Environmental racism is a specific form of racism and could only come about because of social injustice, which reveals the multi-faceted nature of oppression. Understanding the historical context of social injustice is the result of inequality, it is important to critically analyze the structures and institutions that have shaped the lives of the marginalized communities and people.
Are you saying that one bill is not enough to deal with an issue that has so many ramifications? Or would you agree that this bill, in its intentional approach of being inclusive and flexible to the actual needs of those impacted, is a sound first step to tackle a very profound problem?
The question is for both of you.
Ms. Redfern: I guess one hope is that maybe this bill is able to set up the ground so that the tail can wag the dog. Anyone who says that environmental racism doesn’t exist clearly lives in a bubble — one that is very privileged, very urban, probably very White, middle-class and upper-middle-class. I’m going to call it out. If you’re coming from there, you’re not talking to anyone who is either living in rural, remote, northern or Indigenous parts of Canada or from a minority group.
I would disagree with the statement that it would be too hard to map out where environmental racism exists. Again, if you speak to any northern, remote, rural or Indigenous leader, organizations that work in this area — I would include Ecojustice, which I was a board member of — were helping communities that had no other resources take on government that was harming not only the environment but the people in those communities by extension.
Again, if you look to the cases that they’ve worked on and are currently working on, I would conjecture that a lot of the people who are negatively feeling the impacts do not have access to clean water; or the very ground that their children are playing on, whether at school or at home in their community, is contaminated; or they live where there are dumps. They would absolutely tell you they’re dealing with environmental racism.
Again, my apologies for probably not understanding the question as clearly and succinctly as it was asked. While I appreciate that the bill is limited in scope, the assessment is starting the work to recognize that environmental racism exists, is in other regulations and laws and is not site-specific. Organizations like Ecojustice would absolutely be able to tell you what laws are causing the environmental racism problems.
Mr. Smith: Thank you very much for the question. I’ll reason by analogy, but I’ll start by saying that people not being educated on the science is not cause to ignore it. There is a paucity of education on many important issues; however, just because people don’t know about them doesn’t mean they don’t exist.
Reasoning by analogy, I will look at Aboriginal and treaty rights. Even judges who were at one point lawyers are often confounded when we put cases before them establishing Aboriginal and treaty rights. Often, you must have a specific interest in these fields and, honestly, in the Aboriginal and treaty rights area, it’s a lot of reading. To establish under the Peace and Friendship Treaties, which are the treaties that were in Eastern Canada between 1726 and 1779, I imagine to read all of the documents that are required to understand them, you would be reading a stack of paper that is about five feet tall.
Right now, Aboriginal rights is an elective at the school where I teach, in its third year of law school. Before that, it wasn’t required knowledge to become a barrister in the bar societies.
There is now a societal shift in consciousness where people are realizing these issues. However, they existed in the past. Aboriginal rights existed at common law and through the doctrine of continuity when the Crown first made contact.
There was such a long period, especially after the St. Catharines Milling decision in the late 19th century, up until the Calder decision in 1973, when they were absolutely ignored because it was more efficient, cheaper and better for business, from the perspective of those who were privileged to be in those businesses, to ignore them.
Even educational curricula, they are still not adapted to teach people what they need to know in order to effectively participate in reconciliation in Canada. That is especially true with courts and lawyers. That is saying nothing negative about the people who are products of these education systems. However, the education hasn’t been there. It hasn’t been incorporated into educational curricula for primary through Grade 12. There is a lack of knowledge.
Frankly, the Senate’s report Peace on the Water through the eruption of violence that happened a few years ago in southwestern Nova Scotia when the Mi’kmaq were trying to exercise their Aboriginal and treaty rights to fish for a moderate livelihood, the homologous parliamentary report indicated there is a lack of education within the executive branch of government on Aboriginal and treaty rights.
I’ve personally cross-examined Fisheries officers on the education they received during their 16 weeks of training to become Fisheries officers. One Fisheries officer had used his gun in a factual situation. He gave me so much information on how well he was trained to use his gun, to the point where he could train other people to use their guns.
Then I asked him, “So what training did you get on Aboriginal rights in that time?” He said, “None.” That was a year and a half ago, on record, before a court of law. There is no education within the civil service on this. Maybe the ministerial level has received briefing notes, but it doesn’t necessarily trickle down to the people who enforce these policies and have the most discretion over whether to lay a charge or collect evidence. A paucity of education is not an excuse to ignore a fact. I think we see that a lot.
The Chair: That is much appreciated. Thank you to both of you. We’ve had a good session today. We’ve certainly learned a lot. We appreciate you sharing your knowledge and patience with us. Thank you.
If I can ask the committee, there are a couple of things I want to raise. We have one more session that is fully booked with experts. That will be dealt with on April 16 or 18. After that, I would recommend we go to clause by clause. I think we’ve expired. Senator McCallum is aware of that and agrees with that. I think we should go clause by clause after having done that.
The other thing I want to comment upon — it’s always complicated to deal with what we do on a Tuesday night. I know we have a Regulations Committee that is looking after that. I want to repeat the approach we’ve followed. First of all, steering has the authority to sit even if the Senate is sitting. As for the committee at large, we cannot sit until the Senate adjourns.
We have the additional consideration that, under that context, we are sensitive to inviting people to make the trip to come here and then telling them, “We can’t see you.” It is nearly insulting. If we are inviting government officials, or if we have people on video, then we do take the risk of inviting them here on a Tuesday night because the inconvenience is not as significant. I wanted to explain that because it wasn’t very clear for some.
Now, having said that, after we do clause by clause, we can proceed to the next study we proposed, which we voted on nearly two years ago, on extreme weather. We started it briefly but should start reviewing and meeting with witnesses dealing with that issue.
Do you agree with what I just said with respect to the chronology of events?
We’ll move in camera.
(The committee continued in camera.)