THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
EVIDENCE
OTTAWA, Thursday, April 18, 2024
The Standing Senate Committee on Energy, the Environment and Natural Resources met with videoconference this day at 9:15 am [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: My name is Paul J. Massicotte, senator from Quebec and the chair of the committee.
Today we are 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 members and the witnesses in the room to please refrain from leaning in too close to the microphone or remove your earpiece when doing so. This will avoid any feedback that could negatively impact the committee staff in the room.
I’ll ask my fellow committee members to introduce themselves, beginning on my right.
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
Senator Oudar: Manuelle Oudar from Quebec.
[English]
Senator MacAdam: Jane MacAdam, Prince Edward Island.
Senator Sorensen: Karen Sorensen, Alberta, Treaty 7 territory.
Senator Arnot: David Arnot, Saskatchewan, Treaty 6 territory.
Senator Galvez: Rosa Galvez, Quebec.
[Translation]
The Chair: Today the committee is continuing its study 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.
For our first panel, by video conference, we welcome Rueben George, member of the Tsleil-Waututh First Nation and Spokesperson for the Sacred Trust Initiative, and from the Community Association of South Indian Lake, Leslie W. Dysart, Chief Executive Officer.
Welcome, and thank you for being with us.
You have five minutes for your opening remarks. The floor is yours, Mr. George; you will be followed by Mr. Dysart.
[English]
Rueben George, Member, Spokesperson, Sacred Trust Initiative, Tsleil-Waututh First Nation: [hən̓q̓əmin̓əm̓ spoken]
Good morning. I’m Rueben George. My traditional name is Sxloose. I’m from the Tsleil-Waututh First Nation. Our names direct us right to where we are from. Tsleil-Waututh means “people of the water.” As legend and story goes, we come from the water around Vancouver. That is our first mother.
Since time out of mind, we have been stewards of our land, protecting our land, taking care of our land, nurturing our land and enhancing it. For 150 years of colonization, we have seen the depletion of our lands and our waters, being reduced to nothing that we would use as food. Studies have shown in our 1,200‑page assessment of the TMX Kinder Morgan pipeline that 80% of our traditional diet came from water here. Everything is inedible now, except the crab during certain parts of the season and the salmon, but because the salmon aren’t residents when they’re coming through.
We’ve seen the decline and the effects that have happened on our health, but we still continue to be stewards and protect what we love.
Industry has been here, and right from where I’m sitting, there’s a 10‑mile stretch of six different oil facilities at huge scales. One has been burning and processing oil for over 90 years — 365 days a year, 24 hours a day. My auntie has passed, but she would have been 92 by now, and she never, ever remembered that flame not running.
Right across from where I’m sitting is the TMX pipeline. The likelihood of a spill is over 80%, but even with its existence, historically, in any other oil port around the world everything under it dies. As stewards of our land, our salmon count in our main river went down to 6,000 for the whole year. One day last year, because of our rehabilitation efforts, we had 1.3 million salmon in the river at once.
For the first time in 50 years, we did a clam harvest, because we’ve been cleaning the inlet. We reintroduced elk into our traditional territories. We’ve started bringing back wolves, grizzly bears, flowers and started to complete that ecosystem. All that has been ruined because of decisions like the pipeline. As I said, eelgrass right by the terminal is coming back. For the first time in years, herring are coming back because of the rehabilitation. Clams and oysters are starting to thrive. But, as I said, under every port, everything dies.
When millions of dollars are being spent by Fisheries and Oceans Canada, or DFO, and the Tsleil-Waututh Nation on rehabilitation, there’s a big discrepancy on decisions where we’re reducing sport fishing and protecting, but when it comes to industry, the same decisions are made. We know the destruction this is going to cause and the havoc it’s going to create. The efforts where we joined together with our partners are going to be reduced to nothing again just because of the existence of the pipeline.
We did a spill analysis, our 1200-page assessment and multiple economic analyses. We proved that in the Federal Court of Appeal. They even said this year, “Your economic assessment is right, Canada, you’re wrong, but we’re still going to side with the best interests of Canada.” That’s the type of decisions they’re making.
We’ve proven that tanker traffic is going to bring the local killer whale population to extinction. They’re going to be gone forever. We’ve proven that too. In the same court case, they also said, “You’re right, but we’re going to side with the best interests of Canada.”
At one end, we work with government to enhance what we have, to protect what we have, but when it comes to continuing to be stewards, that’s where it’s failing, because when it comes to industry, they’re going to decimate things, on one hand, when we’re trying to build things up and rehabilitate. That’s a huge problem and concern.
I’m here to push forward Bill C-226 so we can identify and address these problems, so we can work with one another to continue to have Vancouver, which is consistently voted one of the most beautiful and livable places in the world. It’s because of the water. It’s because of the mountains.
There’s so much at risk. It’s not if but when a spill will happen. There is an over 85% chance of a spill happening, and when it happens, a million people will be sick, 500,000 birds will die. Thirty years after the Exxon Valdez spill, everything is still dead there. We know this.
At a time of reconciliation, we need this bill to help Canada recognize our title rights, our stewardship rights, our cultural and spiritual rights, our economic rights, our food sovereignty, to make sure that we protect not just for us, because the work we did on the salmon, from 6,000 to 1.3 million salmon in the river at once, that benefits everybody. The clean water where we could do clam harvests, that benefits everyone. When we are reintroducing elk in our territory. These decisions benefit everyone. That’s why this bill needs to be pushed through, so we can protect what we love, continue to protect what we love, at a time of atmospheric rivers.
One day last year, there were over 250 fires in British Columbia. The snow pack is less than 65%, meaning it’s going to be dryer. Already in Prince George, a river has dried out. The salmon there are going to die out for that generation, for this year. Five hundred species of animals, plants and insects rely on the salmon.
With the atmospheric rivers, the floods, the droughts and fires, we don’t need more decisions that are going to put us and the land at risk. We have been here since time out of mind, and we’re not going anywhere. This bill will protect us to make sure that we can continue to stay here with our guests who are in our territory, and continue to be stewards of our land and continue to love and enjoy the beauty that we have here in our beautiful lands of the Tsleil-Waututh territory.
I thank you very much for giving me the time to share just a little bit. There’s much more. If you have more questions, I’m happy to answer them. As I said, we did tonnes of work on stopping this pipeline: a 1,200-page analysis, a spill analysis, clean analysis, multiple economic studies and air quality tests all based on Tsleil-Waututh Nation law, which is the law of our culture and our spirituality.
I thank you very much, and I encourage this bill to be pushed through. It will save a lot and help a lot. Thank you very much.
The Chair: Thank you, Mr. George. Mr. Dysart?
Leslie W. Dysart, Chief Executive Officer, Community Association of South Indian Lake: Tansi, good morning. My name is Leslie Dysart. I am a hunter, fisher and trapper from South Indian Lake and the CEO of the Community Association of South Indian Lake. South Indian Lake is located in northern Manitoba and was once a thriving Indigenous community.
I am here to express my support of Bill C-226. This legislation is needed to address the ongoing environmental racism toward Indigenous peoples and should be implemented as quickly as possible. Community engagement is key and should be prioritized. Our voices need to be heard.
I want it understood by the Senate committee that industry should not wait for the reporting process and immediate action should be undertaken. It is crucial that industry — in my case Manitoba Hydro through the Manitoba government — hear and understand the importance of this legislation. They need to listen and understand that their ongoing operations and historic and current decision-making patterns demonstrate significant environmental racism. Our story is a prime example of how environmental racism has worked in practice for over 50 years and how this has had detrimental impacts to Indigenous peoples and breaches our inherent and constitutionally protected rights.
This environmental racism that Manitoba and Manitoba Hydro have historically demonstrated and continue to demonstrate has never been, and will never be, acceptable. Their ongoing actions need to be addressed through legislative change.
I have lived every second of my life under the oppression of Manitoba Hydro as a result of the Churchill River Diversion, or CRD, project. In the early 1970s, my home at South Indian Lake was flooded by Manitoba Hydro as a result of the CRD. In 1973, Manitoba Hydro was granted an interim licence to operate the CRD.
The interim licence was granted under the Water Power Act of 1930, which was written to allow Manitoba Hydro to dam up rivers and generate power with no recognition of the impacts on Indigenous peoples and their lands. Manitoba Hydro has been allowed to stretch the term of interim licence and operate outside of its parameters since 1979.
The Missi Falls Control Structure was built in the heart of the nation and the lake to dam the Churchill River and manipulate the water level of Southern Indian Lake. A diversion channel was blasted through the Precambrian Shield to unnaturally divert water to the lower Nelson River. We had no say on how these operations were controlled, and yet we suffer with the impacts of these operations daily.
The CRD has never undergone any environmental, socio-economic or legal review. Licensing, monitoring, regulation and mitigation to reduce the harm are poor, lack oversight and is, frankly, non-existent most of the time. When implemented, these activities are directed by Manitoba Hydro and serve its own interests. Our needs, well-being and priorities are ignored.
In 2021, Manitoba Hydro was granted a final licence to operate the CRD. This licence was granted with little to no consideration of, and consultation with Indigenous peoples regarding section 35 constitutionally protected Aboriginal rights.
As a result of environmental racism toward Indigenous peoples, we were branded as squatters on provincial Crown land. Our homes were burned or dismantled, and our traditional, economic and cultural camps were destroyed. We were forced to relocate from our traditional homes and were subjected to a foreign government structure. We have not been in control of our own destiny.
Before the invasion of Manitoba Hydro, South Indian Lake was a beacon of independence and prosperity for a remote sovereign Indigenous community. My community has faced and continues to face serious environmental, economic and social impacts because of the operations of the CRD. Our community, which historically employed hundreds of fishers, helpers, industry workers and their families, now can barely sustain two dozen. We are now spiralling into dependency, loss of culture and language, poor health, addictions and the violence that comes with it.
Since the approval of the CRD, Manitoba, and at times Canada, has failed to address the impacts of the CRD on the ecological integrity of South Indian Lake and the Indigenous peoples who live there. Most of these impacts could have been avoided if Manitoba Hydro and the government had meaningfully considered the impacts of their operations and decisions on the lives and lands of Indigenous peoples. I remain hopeful that with the passing of legislation such as this, continued harm to my community can be avoided and even remedied. Ekosani, kinanâskomitin.
The Chair: Thank you, Mr. Dysart.
Senator Cardozo: Thank you and welcome to our witnesses who are here today. I want to go back to first principles about this discussion. I often find in various fields — I see this in the environment and many other areas — we develop terms like “carbon capture” and “climate change” and we sort of gallop on and people forget what that was about, why carbon is bad and why we’re trying to capture it and all that.
I want to come to this issue of environmental racism. Can we go back to square one and have you define it? I’ll paraphrase a definition here from the Canadian Race Relations Foundation, which describes environmental racism as a form of systemic racism, in which policies, practices or actions relating to the environment have a disproportionate and negative impact on certain groups. That’s sort of a tight definition. Could you provide us with your idea about what environmental racism is? I’ll ask you to start, Mr. Dysart.
Mr. Dysart: Quite frankly, since the Churchill River Diversion project, we have been subject to environmental racism. Through some of my work and research, it’s become clear to me that this became a project of arrogance and not of a need for power generation. The language of the day, when the CRD was proposed, is that it would only impact the small band of Indians of South Indian Lake, and I believe that kind of thinking has persisted throughout the last five decades.
The actions undertaken by Manitoba Hydro through the lack of oversight of Manitoba are almost always environmental racism to the Indigenous people of northern Manitoba, and not just my community. There are dozens of communities impacted, but we are ground zero of the Churchill River Diversion and probably the least addressed First Nation.
There have been a series of agreements and programs, but they’re imbalanced. As I’ve said before, we are ground zero. Most of these programs are not implemented in South Indian Lake. It’s only when we raise our voices, and it’s a very slow and unequal process. In this day and age of so-called reconciliation, those words ring very hollow in northern Manitoba. Those words are spoken, but actions are either done prior, during or immediately after that harm us. This very day, this very second, we are being harmed by the actions of Manitoba Hydro through the lax approval of Manitoba.
I know it’s not a clear definition of environmental racism, but the very acts that are portrayed, the words might not even be considered, but the outcome is racism. They don’t have to do this to us. Most of their actions were avoidable and definitely could have been mitigated. It’s done by want, and sometimes greed.
Senator Cardozo: Your territory, South Indian Lake, is where, in relation to other cities?
Mr. Dysart: It’s located in northern Manitoba, about 75 air miles northwest of Thompson, 310 kilometres by drive, on the Churchill River, but our river has now been diverted unnaturally into the lower Nelson.
Senator Cardozo: Thanks.
Senator Sorensen: Thanks very much and welcome to our witnesses. I also have the privilege of sitting on the Indigenous Peoples Committee. This has become a common question for me on that committee, so I’d like to hear from both of you on this.
There is an emphasis on consultation in this bill, as there should be. How do or can community-based organizations and community members collaborate and advise the federal government best? What I’m really asking is can you give me an idea of what you think those consultations should look like. I’m asking that question because we use the word “consultation” so much, “Indigenous consultation,” and there doesn’t seem to be any template.
I know we have a big country with lots of people who need to be consulted, but I just feel we and you need some understanding of what that word means. You used the term “community engagement,” which is, again, I think a different thing. I’m interested in your views on what consultation should be.
The Chair: Do you want to start, Mr. George?
Mr. George: I can start off by sharing what it isn’t. When we first started this fight to protect our lands and waters against the TMX pipeline, we had 40 minutes to explain our rights and our laws to the National Energy Board. Then at the other end of it, Steven Kelly was the economist that put in 20% of Kinder Morgan’s application on behalf of Kinder Morgan to the National Energy Board and then was hired by the National Energy Board. When we disputed these things, next they created a ministerial committee. They said, “Oh, we hired some good people to be on this committee,” but they were former employees of Kinder Morgan and hired again by the National Energy Board. What we did was to create — like I said — a 1200‑page assessment — a spill analysis and a clean analysis — those things didn’t matter when you are given 40 minutes with our best experts. They wouldn’t do that.
When we submitted our filings from all the research that we had done, the judges — three of them — took weeks to review the work that we did. It’s so important to consult us on the environmental, spiritual, economic and cultural impacts, as well as food sovereignty — on how it has affected us. The Canadian Constitution is supposed to protect our Indigenous rights with regard to these things that are ignored and trampled upon, or even the court system. Regarding the last question, when we’re standing up, believing and saying what we’re doing, my cousin immediately received 30 years in jail for protesting the violence that happens to murdered and missing women. We have to protect our people and make it fair and just for everybody and not just punish the First Nations. I’ll leave it at that.
Senator Sorensen: Thank you. I appreciate it.
Mr. Dysart: The experiences of Mr. George are similar to mine. Consultation — in my experience — is almost meaningless in Manitoba. Canada is very absent from these processes insofar as the regulation and approval of the hydroelectric projects in Manitoba are concerned. The single time Canada — through Fisheries and Oceans Canada, or DFO — came to consult on the Wuskwatim Generating Station Project, they came for a boat ride and a coffee and left. Apparently, we were “consulted.”
Consultation has to mean something. There has to be an equal playing field and not just a checklist of visits or information distribution. I’m sorry to say that I’m probably one of the most consulted people in northern Manitoba when it comes to hydroelectric projects because — honestly — it means nothing. They’re really just sharing information. They don’t really care what we have to say. They disregard the environmental impacts, which are flagrantly obvious. They come with predetermined conclusions and assumptions. In most cases — in my experience — they take our information and build arguments and justifications to go forward and do not adjust the projects.
Our voices need to be heard, but they also need to be respected. It should be a two-way street of giving information and changes to projects. They should be consulted at the “shovel‑ready” stage, not after 10 years of dumping concrete into rivers. That’s my experience. These projects are almost always near completion before consultation even starts. If there is publicity about not proceeding, the answer is, “Oh, too much money has been spent.” It’s a practice. It’s not by accident.
It has to be meaningful, and adjustments need to be made based on our traditional ecological knowledge. So, there’s a balance. That’s the key: There needs to be a balance.
Senator Sorensen: Thank you. Your responses are what we continue to hear.
Senator Miville-Dechêne: I will continue on the same path. I’m obviously shocked and also surprised by the process on the Churchill River Diversion project. I’m from Quebec. There was a huge treaty in 1975 — that’s a long time ago — between the Cree, the Inuit and the Government of Quebec on the James Bay Project. I’m not saying it was perfect, but it involved a lot of money at the time and was quite historic.
What is the difference here? Did you sign off on documents where there’s some help or was it not a treaty? I understood what you all said, but was there anything in terms of real compensation? What can you tell me about that?
Mr. Dysart: “Peace of the Braves” is what you’re referring to in the James Bay Project. The Peace of the Braves, while not a perfect agreement, settlement or compensation, was tremendously different from what takes place in Manitoba. My community of South Indian Lake, which was ground zero of the Churchill River Diversion Project, was denied process as far as what’s called the Northern Flood Agreement, what people have called the “modern-day treaty,” signed in 1977, basically the same year that the project was completed. Our community was not allowed to be part of that process. We were denied support to engage Canada in government. We were left on our own, to use our own resources to argue for compensation.
Manitoba — subject to check — withdrew funding from my community because we opposed the project. They basically told us, “We won’t provide you any funding to do that, but we will talk about compensation.” We couldn’t talk about compensation when we didn’t fully understand the effects and impacts of the project. They have been ongoing. They weren’t a one-time event. There have been 51 years of environmental and social harm to my community.
Senator Miville-Dechêne: Thank you for clarifying that. It’s also a question of length and how it went.
How will this bill — if passed — help you? It’s what we call a framework. There are no obligations, as such. What do you think? Maybe this is for the two witnesses, if we have time.
Mr. Dysart: First, Canada has been absent from our community in relation to Manitoba hydroelectric projects. They disappeared from our community in the late 1980s. They need to be drawn back into dialogue and discussion. That’s one thing.
Also, this bill will expose — I will use the word “expose” — the actions of Manitoba Hydro and, at times, the Government of Manitoba, acts that are really equal environmental racism. Those are two very important things that need to occur.
Yes, it is a framework, but I believe it’s an important framework to move forward to expose and address the environmental racism. Out of that, I believe there will be positive action. Again, I stress to the Senate committee that a message needs to be sent to industry. They shouldn’t wait. There are solutions out there. They should be immediate and significant. This would send a strong message.
Senator Miville-Dechêne: Thank you.
Mr. George: I agree with my colleague, my friend in Quebec. I 100% agree. What I’d like to add to that is the Tsleil-Waututh Nation. We’re — in a sense —ready to and capable of addressing these needs and having resources. We spent millions of dollars being stewards and protecting our land from the Trans Mountain, or TMX, Kinder Morgan pipeline. It was a lot of work to do the assessments, working with world-renowned scientists, economists and marine biologists. But some nations are not ready for that. Some are still dealing with the effects of colonization and the residential school legacy on our communities.
In some communities of the northern nations of Canada, things that affect their environment are getting passed through because they might not have the capacity to deal with it to the degree that we have. This bill would help those nations to protect what they want and what we want, like my relation from Quebec. We want to protect what we love, and we’re saying that our actions benefit everybody: Everybody wins when we win.
When industry comes in and they win, we all lose, especially the environment and the people who have been stewards. When a spill happens, we’re not moving. We have been here since time out of mind, and we’re not going anywhere. I feel it will help the nations that need help. It will help the nations to give them a stronger voice that they might not have. Not long ago, we were in the same position. Tsleil-Waututh went down from 20,000 people to 13,000. My mom is number 62. When she was younger, we were still healing. If reconciliation means something, it could point in that direction of being a good reconciliation where we sit down together and address our issues together, listen to First Nations and listen to our land entitled rights that the Canadian Constitution is supposed to protect.
With glyphosate, for example, they will be sent a letter once a year saying, “We’re going to spray in your territory.” If it’s not answered, or if it’s buried in a bunch of emails, they go ahead and do what they want to do. But that’s their effort. It’s checking a box, more often than not. They’re already making their decision and not listening to the facts that we brought forward as a nation, with all the work we did with analysis and studies — just checking a box. It shouldn’t be that way. I hope and I know this bill will address that. Thank you.
Senator Arnot: Thank you, witnesses. I have a couple of questions and they’re for each witness, generally.
Do you think there are any weaknesses in Bill C-226? Are there things that you think should be strengthened in this bill that we could comment on? I’d really like to know what you’re thinking there because it is just a framework.
A lot of this is all about the accountability of the government. I don’t know if you’re aware, but I think there’s a connection. The UN Declaration on the Rights of Indigenous Peoples Act has an action plan that the Ministry of Justice has put forward. If you’re aware of that, that’s good. If you’re not, then I’d like you to take a look at that because I think it could help answer because I see a real connection. It’s about creating an oversight mechanism, or a group of mechanisms, that gives Indigenous people access to remedies in a much more aggressive and immediate way than currently exists. That’s item 19 in the UNDRIP Act action plan. I say that in terms of advancing the accountability.
I think you’ve already talked about it, but it’s this idea that reconciliation requires action. I think there’s a huge principle of reconciliation that we can link to the issues that you’ve been raising on environmental racism.
I’d like to hear both witnesses react to those questions.
Mr. Dysart: Canada is broad, to the east, west and north, and many communities and different territories have different impacts. Something has to start. It’s far too late. We need to start now, immediately.
My high school education was many years ago, but I sort of understand the process a bill goes through in the House and in the Senate. However, when amendments are made to bills that have been passed, sometimes they have to go back, which usually means they fail. As an Indigenous person who has faced daily impacts all my life, it’s frustrating to watch something positive just stop. It allows status quo for industry to pollute and impact Indigenous people. I’m sure every bill has weaknesses, but we shouldn’t fall into the trap of trying to make it perfect while industry has status quo.
I suggest the Senate moves forward and bring further bills if needed. As I said earlier, the message needs to be strong, clear and immediate to industry that it’s not acceptable and to change now. I believe this bill moving forward would send that signal.
I’m not quite versed in UNDRIP as I should be in a small community where I wear many hats. It’s an unfair playing field every time. Industry usually controls the processes in Manitoba and funds the processes. As grassroots people in remote communities, we don’t have the same access to resources, even some of the knowledge to be here. You can spend a lot of time and effort. Industry has moved on and has closed-door meetings, if I can use that example. We’re very much always playing catch-up.
Action — meaningful, significant, immediate action to address reconciliation — is needed. I believe everybody understands that. Act on it. Move forward. If there are weaknesses, then deal with them as you move forward. Don’t stop and regress.
Mr. George: There is definitely a connection between reconciliation, the bill and UNDRIP because what we’re explaining is that we’re not being heard.
For example, even in court when we explained those facts, they said, “You’re right on your argument about economics and the killer whale, but we’re still going to side with the best interests of Canada.” It wasn’t in the best interests of all the work we’ve been doing.
I agree that this is a start. Your comment was that UNDRIP is saying the same things as we are. UNDRIP has some valuable and good things in it that we could incorporate into what we’re doing and move forward. This bill is a good start, but you’re bringing in examples that would enhance something like this. I know we would too, 100%. I know many nations would too. It has to be a win-win for our environment, for our people and for future generations.
Senator Arnot: Thank you.
Senator MacAdam: I am substituting on this committee today for Senator McCallum. I’m asking questions for her that she has prepared for both witnesses to answer.
In the examples you have given us about your horrendous experiences of living lifetimes under resource-extractive companies, as Indians living on traditional Indian lands and therefore under federal jurisdictions, you witnessed the destruction of the very environment that has sustained your people since time immemorial. This is an example of failed accountability. You have indicated through your presentations that the provincial and federal governments have not shown accountability despite evidence of destruction having been provided to them.
There is no way for smaller communities to bypass centres of state power, including the power given to corporations. When things go wrong, when livelihoods are lost or are drastically decreased, when we see premature morbidity or mortality, what should be done in beginning to look at ways to fix this? Due to your different and unique contexts, and knowing that no one size fits all, what would your framework look like to raise awareness of the structural and systemic racism you face? Who would need to be involved in this process?
Mr. Dysart: Again, there is no perfect structure as time goes by. Some of these projects have been around so long that I could sit here probably for three hours and give you a list of examples of the injustices and the environmental racist acts that have gone on and the impacts that we feel. Quite literally, we’re losing members of our communities, of our nation, faster and faster due to these actions. Our people are being displaced and disenfranchised.
Again, I think the focus needs to start with positive action. I believe this bill supports that. We need to keep moving forward. I can give many examples of the wrongs that have been done and who can address them. However, as I said earlier, Canada has been absent from the regulation, monitoring and approval of Manitoba hydroelectric power. Manitoba has been very lax historically on the regulation and the monitoring.
Industry controls these processes, for the most part, has been my experience. Last week I literally told a representative of Manitoba Hydro that we are being monitored to death. I’m not trying to be dramatic. We lose our members almost monthly now.
Our voices, our communities need to be on a level playing field with Canada, Manitoba and industry. The influences of industry need to be acknowledged, observed and paused for a while. They have great influence on decision-making. We are usually the last to know. There should be a fair process. It’s difficult to outline right away, because there are different regulations.
As I said earlier, with Bill C-226, I used the words “expose the actions,” then we can start addressing them and bring in those who need to be involved.
Mr. George: Thank you. Coast Salish law is truth, family, health and culture. What’s under the culture, inside that is spiritual law. Those fundamentals of any religious and spiritual belief are love, honour, respect, dignity, pride, compassion and understanding. We implemented those into the work we did with the assessments and studies we did. We also do that with all our departments here in Tsleil-Waututh, economic development, housing, social justice, treaty lands and resources, all of them are under that law.
To have us at the table, to have the framework being led by Indigenous people would be important when we’re stewards of our land and traditional territories, being involved in that process from the beginning to make sure we implement these things to make decisions for our future generations, health and culture. Those things would be very important principles to add into a framework that needs help to move forward, continue to protect and eliminate racism.
As my friend was saying, industry dictates what’s going to happen. Those examples I gave about Steven Kelly submitting an economic evaluation of the pipeline on behalf of Kinder Morgan, then was hired by the National Energy Board, that process happened the whole way through for the last 13 years.
For the last 13 years, when it was Kinder Morgan owned, they bent over backwards to do that. Now we look at it and they own the pipeline. They make decisions on the pipeline, and they push it through, no matter how much it’s going to cost, a stranded asset.
Even now, it’s going to be done pretty soon — they say May 1 — but those risks of all the studies we did become real. The economic analysis, $20 billion for a pipeline that’s a stranded asset. They’re still going to continue to burn money by using it and paying somebody subsidies to put their product through this pipeline. All these things don’t make sense.
If we were involved in something like this, in a framework, we would make sure that we properly educate people, like we did for Burnaby. Seventy-one per cent of Burnaby residents supported Tsleil-Waututh Nation and sued Canada for not consulting, because they heard and saw the true facts.
We also see and know the true facts by looking out our windows when there’s been smoke for a month because of the fires that happen in the summer, or how Vancouver was cut off from the rest of Canada because of the floods. Those are the things we’re moving toward to prevent where we see this pipeline being built and they’re calling the shots. This bill would prevent that. Thank you.
Senator Galvez: Thank you to the witnesses for having introduced and presented your issues here.
My office recently did a review, literature on environmental litigation. We saw that cases were stable until 2015. Then, all of a sudden, it jumped exponentially. We now have 2,300 litigation cases in court about the environment, pollution and climate change. That shows that the environmental legislation that is there to protect people is not doing so. That shows us why we need this bill, this framework, to say — loud and clear — that environmental racism exists.
Reading about both of your communities, we see that you were forced to launch major lawsuits, you, Mr. Dysart, against Manitoba Hydro for a half-century of harm caused by projects undertaken against the wishes of the community.
With respect to our other witness, I remember when, in the Senate, a colleague of ours tried to put in place a law to protect the TMX pipeline by calling it in the best interests of Canada. So, what you said resonated a lot.
Can you please explain, are the laws present now to defend your people and your lands enough? In court, what are the problems that you see? Why is this environmental legislation not enough to protect you from the harms you described? Thank you.
Mr. Dysart: Again, repeating myself — it should be repeated — Canada has been absent from northern Manitoba and hydroelectric development.
When it comes to litigation, we feel we have no other options. Yes, it’s costly and timely, but I’ve spent over 25 years and I believe I’ve participated in every process that was available to us. I’ve written letters to ministers. I’ve drawn attention. I believe I’ve even convinced ministers that action needs to be taken.
The influence of industry is so powerful, we end up being ignored. At times, litigation is our only option. A real example, very recently — last week — all of a sudden Manitoba Hydro wants to talk to us because we filed litigation the year before, in 2023. They brought nothing. Seven of them brought their notebooks and pens. They say, “Do you want to give us some ideas?” I said, “We’re not here to educate you. We need action. We need immediate, significant action.”
There were two lawyers and five people who either work with so-called Indigenous relations or affiliated departments; they brought nothing to the table. I know Manitoba Hydro. I know their processes. I know how they sprinkle process money. I told them, “We’re not interested in having years of countless and meaningless meetings with you. If you don’t know the impacts, that’s your problem. We’re moving forward.”
I sincerely appreciate the opportunity here. This is moving forward for us, because we’re bringing attention, asking for action and hoping it’s implemented.
It’s an unequal playing field. We’re usually the last to know what’s going on because we’re not fully or meaningfully informed. Projects are way past shovel-ready. Concrete is literally being dumped into rivers before somebody says, “Oh, maybe we should talk to those Indigenous people who are impacted.” Again, it’s usually foregone conclusions and decisions.
We can convince everybody, it has been my experience, for change and they would basically say, “Well, we can’t do anything now. It’s too late.” This is the stage that has been set for us.
I believe litigation is necessary at times. Will it be successful? I don’t know. I’ve advised my council and other leaders that we have to go there, to use the term — not to be dramatic again — a shotgun approach, try to get everybody drawn into the discussion. I’ll be short here. I’ve tried for 25 years to follow the process. I’ve tried decision-making, but my feeling is that decisions are made. I’ve had members of the Clean Environment Commission and the Public Utilities Board come to me during our hearings and keep fighting after this. Aren’t you going to make a positive decision? The decision has been made before we even start. That’s been my experience. Litigation — I don’t like it, but it’s a necessary evil, as they say.
Mr. George: When we go to the Court of Appeal and they tell us we’re right, we’re going to kill the orca whales, the pipeline, or that the economic analyses were right, but they’re still going to side with the best interests of Canada. What we’re stuck with, no matter how you look at it, is $20 billion that Canadians are going to be on the hook for. We explained that. It’s a ridiculous decision, but the court still continued.
On the other side of that, my son’s ex-girlfriend, she’s a lot like my daughter. Both of them graduated at the age of 15, started university right away, got their first degrees before they were 18. Perfect and outstanding citizens. They did a protest in a dinosaur costume, a cartoonish costume, and played badminton at the Kinder Morgan fence. They automatically got 30 days in jail. No record, no breaking the law, no speeding tickets. I worked in the social field. I worked in the court system. I’ve seen lists of clients who had 30 charges against them, and they didn’t see one day in jail. But when you mess with industry, you’re going to go to jail.
The Gladue reports are supposed to recognize that Indigenous effects of colonization, of residential schools. My grandfather’s name is Chief Dan George, and he’s a famous actor, poet and activist. When he was in residential school, they cut off his finger for speaking his language when he was five years old. Those intergenerational traumas are passed on, and the Gladue report explained that.
Our mother is this water right here. We’re taught to have a reciprocal relationship with our lands and waters because that’s our mother. Mother feeds you. We do ceremonies on the water — reciprocal relationships. Mother takes care of us. In ceremony, we explain that. And in the Gladue report, when Will George explained that connection and how the inherent trauma continues to happen because they’re still ruining and abusing our mother, like what happened in residential school, and it was 100% ignored, he was also given a mandatory 30 days in jail.
Those are problems. It’s the same thing with my son’s ex-girlfriend. A personal report was done on her. She started late in activism — it was about a year and a half when she started to do this work in activism of protecting against the TMX pipeline. The personal report that was done on her was 2,182 pages long. That is Canada’s resources being spent on monitoring this outstanding citizen who has never had a speeding ticket or any charge against her. There were 2,182 pages filed. Canadian resources and police monitoring that’s supposed to be protecting us against a young girl who was finishing her second degree before she was 22. These resources are being spent. I can’t imagine what they have on me. I’m going to file for mine as well. If she was doing it for a year and a half, I wonder how many pages they have on me while I’ve been doing this for 13 years.
That’s the discrepancy we’re dealing with. If you mess with industry, you’re going to jail, and we’re going to gather up so much information on you, it’s ridiculous. Those are a couple of my thoughts on what you brought forward. Thank you.
The Chair: Thank you. That basically ends the first part of our presentation and panel discussion.
[Translation]
For our second panel, from the Canadian Association of Physicians for the Environment, we welcome Jane McArthur, Toxics Program Director, by video conference, and Dr. Ojistoh Horn, Physician and Board Member. From Ecojustice Canada, we welcome Victoria Watson, Staff Lawyer, Law Reform, also by video conference.
Welcome and thank you for being with us. You have five minutes for your opening remarks. The floor is yours, Dr. Horn; you will be followed by Ms. Watson.
[English]
Dr. Ojistoh Horn, Physician and Board Member, Canadian Association of Physicians for the Environment: Thank you, honourable members of the Senate committee. I am Bear Clan from the Mohawk Kanyen’kehà:ka communities of Kahnawake and Akwesasne. I’ve been working as a community-based family physician for 16 years and am a board member of the Canadian Association of Physicians for the Environment, or CAPE.
The Canadian Association of Physicians for the Environment’s recommendation is for the passage of Bill C-226 and a swift implementation of the strategy, stressing the recognition that environmental justice, human health and ecological biodiversity are intertwined and all are impacted by environmental racism. Environmental racism is the inequitable distribution of accountability. It is supported by upstream systemic factors — societal values and beliefs conforming to a capitalist economy — that humans do not have a right to a healthy environment in practice, legislation that does not fairly protect BIPOC and Indigenous communities, institutions whose siloed and competing mandates do not protect these communities and are not uniformly held accountable to the laws already in place and programs that have been designed without input from all stakeholders.
The following vignettes describe pollution hotspots and illustrate some examples of environmental racism and injustice that manifest as poor health for many disadvantaged people across Turtle Island.
Since the mid-1950s, the people of the Kanyen’kehà:ka community of Akwesasne, located on the Ontario, Quebec and New York State borders, have been chronically exposed to toxins, including polychlorinated biphenyls or PCBs, and fluorine. Polychlorinated biphenyls are related to endocrine, autoimmune, neurodegenerative and mental health disorders, cancers and more. Fluorine causes neurodevelopmental and muscular disorders.
These exposures are not fixed and change over time. For instance, as PCBs degenerate and lose chlorine, they become lighter, volatile and are carried by the slight winds that travel over Akwesasne. Also, new industries, while they themselves might be clean, have effluents that risk disturbing the sleeping sediments in the waters containing these toxic compounds, re‑exposing our waters, air and the people.
Our climate is a global commons, and water, air and pollution do not respect provincial and international jurisdictions.
In Northern B.C., natural-gas fracking operations were permitted, based on very little scientific evidence that the process was safe. In this area, incredible amounts of clean water is used in the fracking process, resulting in heavy contamination of the surface, ground and aquifer waters. The damage of infrastructure, such as dams, roads and ditches, and the loss of forests, cause stress on the ecological biodiversity. Fracking is connected to childhood leukemia, cardiovascular diseases, neurological effects, congenital defects and severe respiratory illness.
In this remote area, Indigenous peoples’ lands and communities are disproportionately affected by illness, and they do not benefit from this industry. Did the spirit and intention of free, prior and informed consent, outlined in the United Nations Declaration on the Rights of Indigenous Peoples, signed by Canada and British Columbia, occur for these developments?
The Athabasca Chipewyan First Nation community in northern Alberta is adjacent to the mine tailings ponds containing the effluent of the oil and gas industry. Containing arsenic, benzene, lead and mercury, the waters, animals, fish, air and the boreal forest ecosystem are contaminated. The people’s ability to safely hunt, fish and gather in their traditional territories has been destroyed.
Not being able to interact with the lands and waters that their people have lived with since time immemorial has caused a deep and collective sadness, a profound anhedonia. The environmental devastation that their people have experienced in one lifetime, being unable to stop it despite all attempts to do so, can be described as causing profound moral injury.
It is necessary to strengthen the laws holding companies accountable to the regulatory and safety standards of their industry and not just to their shareholders.
In northwestern Ontario, chronic and persistent mercury exposure is causing neurotoxicity in the communities on the English-Wabigoon river system. The lack of access to clean water, inability to safely eat the fish and wildlife, and complete devastation of their once-vibrant economy have made them even more vulnerable to the extreme weather events seen from warmer, hotter summers, including wildfires and flooding. Barriers to access to health care services are hampered by roads that are less safe and more difficult to maintain.
The support for the health infrastructure servicing indigenous, rural and remote communities are determined by equal, not equitable, factors. This must change. Please pass this bill and swiftly implement the strategy that will study, document and engage with those populations and ecosystems where the laws fall short of their protection.
Niawen go:wa.
The Chair: Thank you. Ms. McArthur, did you have anything to add?
Jane McArthur, Toxics Program Director, Canadian Association of Physicians for the Environment: No, I’m here for questions, if there are any from members of the committee. Thank you.
The Chair: Then we’ll go to Ms. Watson from Ecojustice Canada.
Victoria Watson, Staff Lawyer, Law Reform, Ecojustice Canada: Good morning, Mr. Chair and members of the committee. I speak to you today as a lawyer with Ecojustice and a woman of mixed Haudenosaunee and Scottish descent. I am here to speak to Bill C-226’s ability to advance Indigenous conceptions of environmental justice in fulfilling its stated purpose, thereby demonstrating the necessity of such legislation that contributes to remedying Indigenous rights infringements and advancing reconciliatory commitments.
Bill C-226 mandates the creation of an environmental justice strategy and study, once passed. Although not made explicit in the bill, Indigenous nations and communities must be treated as distinct from other racialized and marginalized communities in implementation, as is necessary to uphold and advance Indigenous rights in the administration of environmental justice, both procedural, and distributive.
As previous witnesses have noted, Canada has legally committed to remedy colonial rights infringements through the implementation of the United Nations Declaration on the Rights of Indigenous Peoples, adopting a legal obligation to uphold such rights and ensure Canada’s laws are consistent with the declaration. The pre-existence of Indigenous rights and jurisdiction, as affirmed by UNDRIP, results in a unique bundle of legal interests that must be respected and upheld in the environmental justice strategy and study. Not only do Indigenous nations and communities face environmental injustice, Indigenous nations are sovereign nations with rights to self-determination and self-governance, as outlined in UNDRIP. This is distinct from the rights possessed by other racialized and marginalized communities in Canada that would be subject to this act. The strategy and study must account for Indigenous sovereignty in their development, substance and implementation, and this bill provides enabling provisions to do just that.
Enabling effective environmental justice that upholds and advances Indigenous rights requires that Indigenous knowledge, laws and leadership, including Indigenous conceptions of environmental justice, are accounted for and advanced in any strategies and studies. To adequately account for and uphold UNDRIP, Indigenous peoples should be provided the opportunity to define the injustices they face and shape how those injustices are addressed for their unique community context and ecological needs.
It is important to recognize that justice does not have one definition in so-called Canada, and that there are many Indigenous legal orders that understand justice differently than traditional Western conceptions of justice. These systems must be able to influence the administration of justice pursuant to this act.
While each nation’s legal order is distinct and must be treated as such, some generalizations hold true for many communities that demonstrate how environmental justice is experienced differently for Indigenous peoples when compared to other groups. For instance, Indigenous law might mean there is a cultural dependency on their continued connection to their traditional, ancestral territory and a responsibility to care for that territory. As such, environmental harms might be considered cultural harms for Indigenous peoples, threatening their continued existence.
Additionally, justice may be understood through responsibilities and relationships of reciprocity with present and future generations of living beings rather than defined by rights to use and benefit from nature. Such conceptions of justice require different solutions to injustice. This discrepancy must be grappled with in the study and strategy to adequately align with UNDRIP and achieve the law’s stated purpose. The administration of justice is ineffective if it does not resonate with the community it is intended to help. Customary law must therefore inform administration of this act, in alignment with Indigenous rights as affirmed in UNDRIP and the original spirit and intent of the founding treaties of Canada.
As Chief Christopher Plain of Aamjiwnaang First Nation has submitted, there are Indigenous communities in so-called Canada experiencing profound environmental racism.
Historically and presently, Crown failure to acknowledge Indigenous sovereignty in a manner aligned with UNDRIP has created unique environmental injustices, such as enabling harmful resource development and limiting access to environmental gifts and benefits, including access to ancestral lands, plants and medicines, as well as clean water and air, thereby threatening livelihood and continued cultural existence.
Bill C-226 is an opportunity to begin to redress these failures and put so-called Canada on the path to full realization of UNDRIP and a recognition of legal pluralism on these lands. This legislation must be passed as soon as possible, as it presents an opportunity for necessary healing and liberation from oppressive colonial systems. Thank you.
The Chair: Thank you. We’ll go to questions.
Senator Miville-Dechêne: My first question will be to the witness from Ecojustice.
You’ve been very clear on the difference in terms of legal rights between the Indigenous and the racialized or marginalized communities. Do you think there should be a difference made in the bill? You haven’t suggested any changes at this point. Is it a “fatal flaw” or is it something we can work with, considering we’re talking about building a strategy, so the strategy is not yet built? Was it a mistake for you to combine those two or three issues?
Ms. Watson: That’s a great question. Thank you for allowing me to clarify that.
My submission is not to suggest that the bill as currently drafted needs to be amended. Although the distinction and the requirement for the government to treat Indigenous nations as distinct from other marginalized and racialized communities is not specifically mandated in the act explicitly, Indigenous nations and communities are separated out as distinct by the fact that the act addresses them separately and does not lump them into the category of racialized and marginalized communities just based on its listing of all three categories of communities that would be addressed in implementation.
My submission is that the bill, as currently drafted, enables the capacity for the Crown to treat Indigenous communities as different and distinct from other marginalized and racialized communities. So it is not a fatal flaw of the bill.
Senator Miville-Dechêne: We’ve heard many extraordinary, sad stories of environmental racism. Ecojustice does great research. There are, obviously, environmental problems that touch non-Indigenous communities. In Quebec, we’ve had for years the case of the Horne Foundry, which pollutes the whole city.
You’ve done, I suppose, research trying to compare the incidents. How can you, scientifically — because it’s a series of problems in different communities — be absolutely certain? I’m not denying anything. I’d just like to know if there are figures to show how much more in communities, as opposed to non‑Indigenous communities, incidents of having polluting industry put there without enough protection.
Ms. Watson: Thank you for your question. My submission is by no means to downplay the environmental racism that is felt and experienced across so-called Canada by other racialized and marginalized communities on the basis of race or socio‑economic status, et cetera.
My submission is drawing attention to the fact that Indigenous nations have a unique set of legal rights by nature of being sovereign nations. It’s not about the comparison of the lived experience of environmental racism. It’s the fact that this bill is layering on top of legal rights of sovereignty and jurisdiction that exist uniquely for Indigenous nations as Indigenous peoples of so-called Canada and the original stewards of this land that are distinct from other racialized communities that are reflected in United Nations Declaration Act, or UNDA, and in UNDRIP. So the legislation, the bill as currently drafted, really does enable a real grappling of how these various communities that are experiencing environmental racism are experiencing them and subject to them in different ways.
When we’re looking at the impacts of environmental racism on the basis of indigeneity, there has been historical and present oppression of Indigenous sovereignty and pre-existing rights prior to settler colonialism and the assumption of Crown jurisdiction. That creates a unique approach in administering environmental justice. There needs to be that recognition of the impacts of settler colonialism on oppressing Indigenous jurisdiction. But again, it doesn’t devalue or delegitimize the claims that other marginalized communities have and the hardships that they experience due to pollution, natural resource development and other environmental racism challenges.
Senator Miville-Dechêne: Thank you so much.
Senator Sorensen: I’m going to direct my question to Dr. Horn, but, if time allows, I wouldn’t mind Ms. Watson also addressing it.
Dr. Horn, you mentioned in your testimony a community in my province of Alberta impacted by environmental racism, Athabasca Chipewyan First Nation. As we know, last year, Imperial Oil and the Alberta Energy Regulator, or AER, hid from Athabasca Chipewyan First Nation the fact that a massive spill had occurred in their community. The AER issued a statement saying that it is the company’s responsibility, as soon as they become aware, to report it to affected parties.
The federal government, once they finally became aware, reached out to Chief Adam and the provincial minister responsible and offered the federal government’s support, ultimately issuing a cleanup order through the Fisheries Act.
Indigenous leaders and environmental advocates rightly say that the AER is not taking proper accountability and also pushing for the federal government to take a stronger role in protecting Indigenous, rural and remote communities from industrial-scale environmental contamination.
Do you believe the strategy that’s being suggested in this bill will give the federal government the proper tools to take on a stronger role in ensuring protection in communities such as Athabasca Chipewyan First Nation?
Dr. Horn: So the details of this bill, as far as I know, we’re looking toward a strategy. I think there is an unequal distribution of accountability. That’s the whole problem. How do we shore up those laws that already exist and are just weighed differently depending on which group you’re talking about?
We already have many of the laws in place. We just don’t support those institutions that have the mandate to enforce those laws. I’m feeling that we’ve already got all these wheels created, so why don’t we figure out how to use them equitably?
Senator Sorensen: The hope would be that when the strategy is written, some of those tools will be put in place or mandated, or whatever the strongest language is.
Dr. Horn: For instance, there are many grey zones when it comes to Indigenous. This is why we always talk about Indigenous lands and Crown and Indigenous lands, because it’s a big grey zone. The Canadian Environmental Protection Act, or CEPA, is a federal legislation that is mandated to be carried out and enforced by the provinces, but Indigenous communities and lands are not part of that mandate. So then it’s up to the individual band councils that may not have the in-kind or human personnel or just ability to be able to oversee these very well‑funded corporations that are encircling them, asking for their permission to do what they want.
It’s very unequal. That’s why UNDRIP is so important. When we have free, prior and informed consent, we are given the time and the resources to really find those people whom we trust to be able to come in and help us really understand what’s going on — and not in legalese but so that everybody in the community can understand — and how we can make a truly informed decision. Then the question is this: Who has the voice to sign those papers? Are those people really from the community? Are they internally validated or externally validated by some other government or municipal level or a corporation? It depends on who validates the people who are signing those decisions.
We live in a grey zone, and that’s why we keep falling short. There are things in place, but we just have to figure out how to make them equitably distributed.
Senator Sorensen: Thank you very much.
Ms. Watson: I do believe that although mechanisms are in place that can enable better regulation and accountability, this bill provides an opportunity to take a broader systemic look at intersectional environmental impacts and the ways that the oppression of Indigenous peoples and other racialized and marginalized communities are baked very broadly into the legal system. You have these discrepancies of power. You have the assumption of colonial jurisdiction that has enabled continued development of — for instance — Indigenous lands and prioritized the needs and interests of industry.
This bill really does provide an opportunity to take a look at that holistic picture and to look more broadly at what the legal and policy context is in which that regulatory body is situated. What are the enabling policies and laws that give the power to industry over Indigenous communities? How can the Crown come to tables and enable recognition of Indigenous jurisdiction better so that the power imbalances that currently exist — that enable business as usual — can slowly be dismantled?
Does the bill on its face stipulate that this is how the act would ultimately be implemented? No, it doesn’t stipulate that, because it provides a lot of freedom — and necessarily so — so that the people who are first-hand impacted by environmental racism can come to the table and dictate from the forefront how this bill is given life, how this strategy takes shape and how these intersectional lenses are able to really be felt and seen through policy and legal changes that result from the implementation of the act.
Senator Arnot: I have one question for Dr. Horn and one question for Ms. Watson.
Dr. Horn, as a physician who combines traditional Indigenous and Western medical practices, how do you see this bill supporting the integration of these diverse perspectives in addressing environmental health issues? Given your advocacy for the acknowledgement of the connection between land health and community health, what measures would you propose to be included in Bill C-226 to effectively protect those aspects for Indigenous communities?
Dr. Horn: There’s a really big distinction between the wellness economy and well-being. Right now, a lot of money has gone into the wellness economy. You can go and get your massage and acupuncture, and you can get all these alternative approaches to making yourself feel better.
The problem is that a lot of those things were taken out of the context of the thousands of years that they were developed in a particular place in the world. When you pick and choose what it is that you want, it’s out of context. What that means is that it’s out of the relationships that went into creating that procedure. Then what you’re doing is making it not as strong.
A lot of energy has gone into the wellness economy. People spend a lot of money on this. But because it is expensive — it’s not part of the regular health system — it removes you from the original relationships that made that modality so strong, and it doesn’t work either. It doesn’t work.
When we talk about traditional medicine, what we’re talking about is really engaging in, improving and supporting those relationships that originally made us healthy — like our relationships with the water and the land and the acknowledgement that we’re not just here. We have responsibilities. We’re not just here for the taking. We are responsible for stewarding the land. This is not our land. This land belongs to those faces that are coming, the ones that are not here yet — the yet unborn.
When we talk about traditional medicine, we’re talking about well-being, not wellness. That is another level, and it’s about context. That necessarily requires the land, and it requires us to think about the future. It’s very suitable for us to think about environmental stewardship in this context and how it is very much similar to the Indigenous ways of being.
Senator Arnot: Thank you very much for that.
Ms. Watson, how does Ecojustice Canada balance the urgency for immediate environmental protection with the longer-term goals of legal reform? What are the main challenges you see in legal recognition of environmental racism?
Another thing you might not be able to comment on today but that I’d like to have you send in to the clerk is this: If you look at Justice Canada’s United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan, there’s an item 19. It’s about a really robust dispute resolution mechanism that would allow Indigenous people to go before it and get resolution and answers. It’s very comprehensive. Do you see any linkage to these larger issues we’re talking about and that kind of a remedy mechanism, which is currently lacking?
Ms. Watson: There are many intersections that exist between the implementation of Bill C-226, the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, and the UNDA Action Plan. As has been previously acknowledged, there are intersections with the Canadian Environmental Protection Act, or CEPA, and the right to a healthy environment. What’s really positive about this bill is its all-encompassing nature. That touches upon the role that Ecojustice has as well.
It is very challenging to bridge the urgency of needing immediate change now to addressing the current fatal climate change and biodiversity impacts that we are seeing and facing — which are crises — as well as addressing the baked-in systemic oppression of both the natural world as well as in Indigenous and racialized communities. The problem that exists there is because urgent action is incredibly limited systematically because of the way our current institutions and legal systems and policies prioritize the rights and interests of industry and of a capitalist economy over that of the well-being of Indigenous and other racialized communities and the well-being of the natural world.
When we want urgent action, it can be very challenging and misleading because the most sustainable and long-term solution is to actually look to the root causes. What is perpetuating the oppression of Indigenous and other racialized and marginalized communities? How is that embedded within our system? In the implementation of Bill C-226, I envision that there may be other legislative amendments. There may be new bills. There may be declarations and certainly policies that address the fact that we are working within a system that does not value and prioritize the health and well-being of the natural world or of these marginalized communities. How do we unpack all of that baked-in systemic oppression and rebuild in a way that’s actually going to support the long-term sustainability of the natural world and the long-term sustained livelihood of these marginalized communities?
Therefore, it’s really about that decolonization process — that peeling back, rebuilding, re-educating and envisioning a path forward that we maybe can’t see right now. It will be really imperative to do that while also taking urgent action and taking every opportunity we can to provide healing and connection now and start rebuilding trust. I’m very hopeful that with an implementation of the obligations set out in this bill, there will be a combination of that high-level view to the necessary systemic change to enable environmental justice, and on‑the‑ground action that allows the reconnection of marginalized communities to healthy environments and a felt sense of healing and trust.
Senator Arnot: Thank you.
Senator White: I have two questions, one for each of the speakers. Thank you, first, for your presentation here today. It’s been very informative.
Dr. Horn, my first question is for you. It relates to a bit of what you were saying to Senator Arnot earlier. We know there’s an abundance of Indigenous capacity and knowledge sharing, which is often ignored when we’re developing policy or any kind of solutions for environmental management.
Can you tell us any advice or thoughts you would have for us on how we could effect or facilitate that knowledge among the stakeholders best and ensure that those capacities are incorporated into the policy? This bill is about developing a framework, so how can we ensure best that this happens and is actually put into the regulations and not left behind at the consultation stage?
Dr. Horn: I think it’s really important to recognize that the monies given for different programs and research grants all have preordained or pre-understood measurement tools to say how you will measure success or failure. These measurement tools are usually quite strict without much creativity. As you go along and learn, you still have the same measurement tool, so it’s very restrictive. Our measurement tools are only as good as the hypotheses used to generate them, which are only as good as the underlying thought that went behind them.
Indigenous ways of knowing, we don’t know how to measure a lot of that stuff. Therefore, it doesn’t get into the measurement tools and it never gets measured, and so it never becomes part of the success or failure of whatever it is that you’re talking about.
Part of the problem is figuring out how we measure, qualitatively and quantitatively, our input into this process. Right now, the scientific method is very much against us. There is some work toward what I’m discussing, but it is a very big block. I do research and I do understand this.
The other thing has to do with who is administering that research. Why are we only going with academic institutions, hospital and clinic-based institutions? Why are we doing that? Why can’t we have community advisory boards through our traditional means, like through our longhouse, and have the people come in and get a certain amount of research literacy, environmental literacy in the context of our traditional spaces so we can make community decisions? Instead, right now, we have a few people who do not engage in the community. They’re more from a top-down approach because that’s the colonial system we work in. We could work more from a community-based perspective. For instance, in my community, we talk about the longhouse. We could go there and have that be the hub of research rather than it being at the clinic. There are different ways of measuring and different places to share information. Where do we interrogate the minds of everybody in the community to come to the best consensus, the best truths, so that we can make the best decisions for where we live?
We need to go back to basics and recognize that we are very different. We do have very strong relationships and we are, at this moment, not utilizing them in the scientific method.
The Chair: Does that satisfy your question?
Senator White: Yes. I’ll ponder it a bit more, but thank you.
My next question is for Ms. Watson. You indicated this bill is a good first start, and I guess the key is in how we implement it when we actually get to developing the strategy.
If the bill passes, is there more that the government can do in parallel with the consultations that are set out in the bill, the way we are consulting — even though we don’t know who we’re consulting with yet — to provide more immediate support and remedies for the communities at the time, rather than wait until the end when it’s all developed? Is there a way we can do something while we’re developing and consulting?
Ms. Watson: That’s an important question. There is necessary space created in the legislation in terms of how consultation is enabled. That is important because it’s reflective of the challenges of the unique community and ecological context that different communities are situated in and the distinctions that exist among those communities and, therefore, the needs that are felt and identified by those communities, both immediate and long-term.
While I have acknowledged that there are systemic enabling factors that perpetuate the prioritization of industry and Crown government interests over these marginalized communities, there is also a real opportunity for on-the-ground healing. Even just changing the approach to governance in the implementation of this bill could provide on-the-ground healing, providing an opportunity at the forefront of the implementation of this bill asking impacted communities what do you need and what is injustice for you, and then bring in those people into the process of procedural justice and, in turn, allowing those voices to inform and dictate how justice is then administered through the study and the strategy. I think this is really integral.
There is capacity for immediate impacts and experiences of justice, and that procedural element of justice will help build that foundation of trust from which communities can move forward in partnership with the Crown to create a vision for environmental justice that will be felt by those people and is not performative but provides a reconciling of both on-the-ground healing as well as systemic change. I’m hopeful that the bill, as drafted, can enable that deep and meaningful grappling with procedural and distributive environmental justice.
Senator Galvez: Thank you so much to the witnesses. A lot of information, a lot of connections between different issues, which helps us to understand the whole thing holistically.
I am ready to vote in favour of this bill. We need it. It’s so evident. It’s unbelievable how we didn’t come up with this before. I present my excuses about that.
In this committee, we passed the Impact Assessment Act and the CEPA modernization act. The Senate recently adopted the UNDRIP.
I would like to have your views on how you see this bill harmonizing with these other three. What are the links, and how do you see, in the future, when we develop this strategy, how these will be harmonizing?
Dr. Horn: I’m familiar with the two on the outer, the UNDRIP and the CEPA, not the one in the middle. How do we harmonize them? Right now, in our community, we have an incredible amount of historical pollution that is at risk of re‑exposing our community to an incredible amount of pollution — PCBs and fluorine and arsenic and benzene. A lot of these are cognitive. There is a real risk to our neurodevelopment and a neurodegenerative set of illnesses in our communities. Our ability to think about this stuff is impacted.
Because our community is partially in Ontario, Quebec and New York State, we have international laws. We have the Environmental Protection Act on the American side. We have the CEPA on the Canadian side, but it’s a reserve, so it’s not really covered; and we have our own environmental programs on each side, which do not have the means of adequately addressing this. It’s very piecemeal.
We also have a massive hydroelectric dam that provides a lot of cheap energy to these new and upcoming industries that are green — it’s a great industry. It’s hydrogen fuel — with no real discussion about how it will impact and aggravate the previous exposures that our community has had. We haven’t had UNDRIP. It just happened and we had no say.
We have this confluence that can be well described in each of our communities. I know very well how it’s happening in Akwesasne.
One of the things I think is very important is to know is the distinction between advocacy and activism. There is a connotation between both of them, and it’s quite harmful.
I do classes at McGill University’s medical school, and one of the evaluations said that Dr. Horn is very engaging and really understands the subject material, all this good stuff; however, there’s a fine line between activism and advocacy, and Dr. Horn seems to walk over that line several times, and I don’t know if that’s desirable. And I said, “What?”
I didn’t realize that there’s a distinction, because I’m a native woman working on reserve. I have my whole family there. There is all this stuff here. I thought I was advocating.
We have CanMEDS, which is an approach to teach our medical students and our residents about how to be communicators, educators, scholars and advocates. We’re teaching everybody to be advocates. However, there’s a fine line when you have a certain position that you are an activist, and it’s actually quite negative. I was like, “We need to protect ourselves,” because that can look very negative.
It’s a new phase of thinking about how we advocate for our communities in a positive way, and this is coming to the forefront. Not only do we need to know all of these laws and how they interact in our communities, but we have to do it in such a way that we are not going to be negatively portrayed.
Senator Galvez: The same question to Ms. Watson.
Ms. Watson: Thank you. It’s an important question that I think really demonstrates the potential value and impact of this bill. Specifically, the Impact Assessment Act, or IAA, as well as the Canadian Environmental Protection Act, or CEPA, are really examples of the ways in which our current Western paradigm and colonial legal systems silo environmental issues. There is a tendency to treat different industries in different ways and treat different environmental issues in different watertight compartments. That means that the broader cumulative impacts of these various projects and developments that are approved, enabled and permitted by these laws are not seen from a holistic picture.
This bill, and environmental justice principally, really ask us to take an intersectional and holistic look at the impacts of environmental laws and policies in so-called Canada. I really see the connection between this bill and laws like the IAA and CEPA as so integral to enabling a much better vision as to the broader impacts of how our regulatory systems are actually implicating both environmental health as well as the health of marginalized communities.
There is potential for this strategy to almost function as an umbrella or an overlay that creates connections between these disparate legal and political categories of environmental regulation and permitting and create connecting factors. It also has the capacity to span beyond some of the bureaucratic bottlenecks and watertight compartments that are actually responsible for the administration of these acts and the regulations and policies that fall thereunder. There could be things such as screening tools and other enabling tools that broadly allow, across ministerial and departmental considerations of environmental justice impacts so that we’re seeing that health and the environment are not so disconnected.
Employment rates and socio-economic initiatives that uplift and empower Indigenous and other racialized and marginalized communities to be able to make informed decisions and care for their land and families are actually connected to their environmental well-being, as well as those connections between culture and environment that I spoke of that are so integral to Indigenous peoples.
I also see the implementation of the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, as having that similar function. I think it’s really important that we understand UNDRIP as having that similar intersectional approach. There are cultural and environmental considerations, and that lends very well to the implementation of Bill C-226.
I see both of those as functioning as, kind of, umbrella pieces of legislation where the substance is built out in their implementation. I’m very hopeful that they touch both the implementation of the Impact Assessment Act as well as CEPA.
The Chair: Thank you very much.
Senator MacAdam: I am substituting on this committee today for Senator McCallum, and I’m asking this question for her.
First Nations peoples don’t need to rely on UNDRIP to give them permission to enact their inherent rights. Given the existence of these rights, any consultation and dialogue with First Nations should always be based on respect, truth and honesty.
Canada knows and has acknowledged that First Nations carry these inherent rights with us and that they have always existed. Accordingly, these rights inherently incorporate all the articles found within UNDRIP. As such, First Nations people do not need the permission and allowance of UNDRIP, for example, to exercise and validate those rights.
I’ll ask all the witnesses to speak to that.
Dr. Horn: One of the very first treaties that happened in the colonial era was the Two Row Wampum, the Kaswentha treaty, in which we would have our canoe with our ways of being. Our laws, our rights that we would uphold, our governance, our language and our ceremonies would be in our boat, and it would be the Dutch ship with all of that stuff in their ship. We would go down the river of life together.
We also have the dish with one spoon. We have this massive area of land, and there’s enough for all of us, as long as we have a responsible and respectable harvest, and we don’t take more than we need. We don’t hoard, we share, and we have a common engagement with this land.
That was ratified first by the Dutch, then the French, then the English and then Canada. We’ve had this idea about stewardship and mutually respecting each other from the very beginning. That has, somehow, over the years, been changed and diluted, and the spirit of that has been lost.
However, what you’re describing is very true. We’re trying to get back to this Kaswentha treaty that was already agreed upon in the 1610s — in 1614. This is not new, and you’re right that we remember our part of the treaty, but I don’t think that the colonial governing structures here did the same.
UNDRIP is not so much for us as it is for Canada and the provinces.
The Chair: Do you want to add to that question?
Senator MacAdam: Yes, I’d like the other witness to add to that.
Ms. Watson: Thank you.
I would agree, I think, with the way you have framed that Indigenous rights are affirmed by UNDRIP. They were not created by UNDRIP, nor are they created by section 35. They already existed, and the existence of the originating, founding treaties of so-called Canada are actually confirmation of the sovereignty of the nations that were engaged in that treaty-making process.
Unfortunately, through the enabling and establishment of settler colonialism, there have been structures put in place that have prevented Indigenous peoples from being able to act on and utilize their rights and inherent sovereignty. The oppressive factors that have disempowered Indigenous peoples and disconnected Indigenous communities from their lands have made it impossible or almost impossible to find fulsome exercise of the rights that they inherently possess.
This bill really does provide an opportunity to look at those systemic impacts and the ways in which Indigenous peoples have been disempowered and disconnected from their lands and from their communities and continued cultural existence, and see and view that as an environmental right.
Where that respect, that truth and that honesty really come into play is, yes, recognizing that these inherent rights and jurisdiction have existed since time immemorial but also recognizing the ways in which the Crown and its laws and policies have made it almost impossible for fulsome and meaningful exercise of those rights. That recognition, respect, truth and honesty can carry us forward and, hopefully, put us on a path to changing and rewriting those systems so that we really can embody that Two Row Wampum and exist harmoniously alongside one another. We can help one another and really be seen to be equal so that the legal and the knowledge systems that exist for Indigenous peoples, as well as within Crown systems, are valid in and of their own right. That kind of respect will really take us far.
[Translation]
The Chair: I thank the senators and witnesses for their participation and contributions today. I think this will be very helpful.
In preparation for clause-by-clause consideration of Bill C-226 on Tuesday, April 30, 2024, members who wish to propose amendments should consult the assigned legal counsel from the Office of the Law Clerk and Parliamentary Counsel to ensure amendments are drafted in the proper format and in both official languages.
(The committee adjourned.)