THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
EVIDENCE
OTTAWA, Tuesday, September 24, 2024
The Standing Senate Committee on Energy, the Environment and Natural Resources met with videoconference this day at 5:30 p.m. [ET] to study Bill C-49, An Act to amend the Canada—Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and to make consequential amendments to other Acts.
Senator Paul J. Massicotte (Chair) in the chair.
[Translation]
The Chair: Honourable senators, good evening. My name is Paul J. Massicotte, I am a senator from Quebec and I am chair of the committee.
Today we are holding a meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.
I would invite the committee members to introduce themselves, starting on my right.
[English]
Senator Tannas: Scott Tannas, Alberta.
[Translation]
Senator Verner: Josée Verner from Quebec.
[English]
Senator Prosper: Paul Prosper, Nova Scotia, Mi’kma’ki territory.
Senator White: Judy White, Ktaqmkuk, better known as Newfoundland and Labrador.
[Translation]
Senator Gold: Marc Gold from Quebec.
[English]
Senator Petten: Iris Petten, Newfoundland and Labrador.
Senator Francis: Brian Francis, Epekwitk, P.E.I.
Senator Manning: Fabian Manning, Newfoundland and Labrador.
Senator D. M. Wells: David Wells, Newfoundland and Labrador.
[Translation]
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
[English]
Senator Kutcher: Stan Kutcher, Nova Scotia.
Senator Woo: Yuen Pau Woo, British Columbia.
Senator Arnot: David Arnot, Saskatchewan.
[Translation]
The Chair: Welcome, esteemed colleagues, as well as all viewers watching our deliberations from across the country.
Today, the committee continues its clause-by-clause consideration of Bill C-49, An Act to amend the Canada—Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and to make consequential amendments to other Acts.
Officials from Natural Resources Canada, the Department of Justice Canada, Fisheries and Oceans Canada and Parks Canada were invited to join today’s meeting to answer questions about Bill C-49.
Esteemed colleagues, do you have any questions for the officials before we proceed to the clause-by-clause consideration?
[English]
Senator Manning: Mr. Chair, I ask for the indulgence of the committee to make a few comments in relation to our meeting last Thursday, September 19, 2024. When a motion was made to remove clause 28 of Part 1 of Bill C-49 followed by a motion to move a consequential amendment to clause 7, I voted in support of both motions. At the time, I was led to believe and had the understanding that supporting those two motions was in the best interests of my home province of Newfoundland and Labrador, and subsequently I had no hesitation in providing my support.
When I asked a question of Ms. Tobin regarding whether under this bill at any time in the future would a federal Minister of Environment unilaterally have the right to shut down an offshore project in Newfoundland and Labrador, Ms. Tobin informed me and the members of the committee that that would not be possible based on the fact under the Atlantic Accord Acts of Newfoundland and Labrador and Nova Scotia and the Government of Canada, jurisdiction is on a 50-50 basis and neither the federal nor provincial minister can act unilaterally.
Following our meeting on Thursday and through the passage of time since, I have consulted and sought advice from both levels of government, individuals and groups directly involved in the oil and gas industry and some very concerned citizens in my province on this very important issue.
Based on those discussions, I have come to the conclusion that removing clause 28 from Bill C-49 and making a consequential amendment to clause 7 is not — and I repeat is not — in the best long-term interests of my province of Newfoundland and Labrador.
Based on the immense amount of thought and consideration and my openness to learning from others, I strongly believe today that the passage of this bill is vitally important to both Newfoundland and Labrador in addition to being equally vitally important to the province of Nova Scotia.
In my close to 40 years of political involvement, I can safely say it is very rare that we witness such great collaboration and unified agreement on a piece of legislation from both the federal and provincial governments, and in this case one government of a different political stripe.
Last week’s votes and decisions are behind us, and that is where they should stay. But I want to go on record here at the committee this afternoon that I look forward to the report stage of the bill in the Senate Chamber where I will stand and support Bill C-49 on behalf of the people of Newfoundland and Labrador.
Thank you, Mr. Chair.
The Chair: Senator, to clarify, what is it that you expect from us, having advised us that you have changed your vote? Are you suggesting we organize another vote? Or are you simply saying you want it to be noted on file that your opinion has changed somewhat?
Senator Manning: Noted on file that I will support the bill when it comes to the chamber. Nothing to do with today’s meeting; just want to get it on record. Thank you, Mr. Chair.
The Chair: Any other questions that should be addressed to the officials? If not, let us proceed.
[Translation]
Before we begin, I would like to remind the senators of a few matters. If at any point you lose track of where we are in the process, feel free to ask for clarifications. I want to make sure that everyone knows where we are at all times.
In terms of procedure, I would like to remind the senators that when an amendment is proposed for the same clause, amendments need to be proposed according to the order of the lines of text. As a result, before we consider an amendment to a clause, I will check whether other senators intended to propose an amendment to a previous line of the same clause. If that’s the case, they will have a chance to do so.
One small clarification: If a senator is opposed to an entire clause, the usual procedure in committee is not to adopt a motion to remove the entire clause, but to vote against the clause when we go to a vote. I refer you to subsection 698(6) from Beauchesne’s, which specifies that an amendment is inadmissible if it aims only to remove a clause. In that case, it is enough to vote against the clause in question.
I would also like to remind the honourable senators that some proposed amendments may affect other parts of the bill. I refer the senators to citation 698(2) from Beauchesne’s, which states that an amendment is out of order if it is inconsistent with, or contradictory to, the bill as so far agreed to by the committee or inconsistent with a decision which the committee has given upon a former amendment.
As a result, it would be very helpful if a senator proposing an amendment could indicate to the committee which other clauses could be affected by the amendment. Otherwise, it could be very difficult for our committee to remain consistent in its decisions.
Committee staff will make an effort to note the places where subsequent amendments need to be proposed and will indicate them to us. Since proposing amendments does not require advance notice, there may obviously not have been a preliminary analysis of the amendments to determine those that could impact the other clauses or conflict with them.
If any committee members have a question about the process or the merits of anything, they can raise a point of order. The chair will listen to the arguments, decide when we have sufficiently discussed the procedural matter and make a ruling.
Naturally, the committee is master of its own business within the limits set by the Senate, and a senator may appeal a ruling by the chair before the committee by asking whether the ruling should stand.
The third reading is the final step in the study of the bill in its entirety.
Amendments to the clauses can also be proposed on the third reading.
As chair, I will do my best to ensure that all senators who wish to have the floor may have it. However, I will need your cooperation. I ask everyone to stick to the facts and be as brief as possible.
I would also like to remind the senators that if they have the slightest doubt about the results of a voice vote or show of hands, the most orderly way of intervening is to request a recorded vote, which will give a clear result. The senators know that in case of a tie, the motion will be defeated.
Do you have any questions about what I just said? Then we will resume where we left off at the Thursday, September 19 committee meeting. We will resume the debate on the motion in amendment to clause 111.
[English]
Senator Prosper: By way of an update, I think that many of you know that the former Bill 471 in Nova Scotia has now become legislation. It received Royal Assent on September 20. In light of that, I want to update the committee that I have chosen to just stick with the amendment I moved in the last meeting involving consultation and drop the rest of the amendments that I intended to bring forward. I think the most persuasive way to bring issues forward is through the doctrine of consultation.
It’s rather unfortunate that the events went as they did. I find it sort of constrains our constitutional duty a bit to amend legislation. I think it’s a major role of senators to speak on behalf of minorities and to present regional perspectives as well. More of that in third reading.
I’m not asking to delete or change anything. I’m viewing that the prospect of mirror legislation in Nova Scotia can coexist with this amendment in the federal act, which is squarely within the federal mandate, both under offshore jurisdiction and jurisdiction with respect to Indians and lands reserved for Indians. I think in light of United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, and that statutory requirement, it should help inform our discussion on how seriously we view consultation as it relates to the Crown and Indigenous peoples.
Consultation is guided in part by the honour of the Crown, which is a principle in law. It provides that the Crown must act honourably in its dealings with the affairs of Indigenous peoples. Part of it comes from the law of fiduciaries where one party is at the mercy of another, and this imbalance gives rise to a Crown obligation to treat Aboriginal peoples fairly and honourably and to protect them from exploitation. Part of this duty involves a duty to consult. Where the Crown contemplates an action or a decision that has the potential to adversely affect a section 35 right, the Crown has the duty to consult the rights holders and, where appropriate, to accommodate.
I note that David Arnot in a response to a Speech from the Throne on October 6, 2023, provides the following:
Human rights, treaty rights and Indigenous rights, just like the rule of law and judicial independence, are not and must never be measures of compromise. Our ability as senators to act independently from government, to be the chamber of sober second thought, is not a measure of compromise.
Colleagues, there are certain provisions within this act, namely clause 18.1 — and you must note that this is mirroring legislation within Nova Scotia, so there is a similar provision within section 18.1 which is titled “Consultation with Indigenous peoples of Canada.” It provides:
His Majesty in right of Canada or in right of the Province may rely on the Regulator for the purposes of consulting with the Indigenous peoples of Canada respecting any potential adverse impact of a work or activity in the offshore area on existing Aboriginal and treaty rights recognized and affirmed by section 35 of the Constitution Act, 1982 and the Regulator may, on behalf of His Majesty, if appropriate, accommodate any adverse impacts on those rights.
Again, I mentioned, there is mirror legislation provincially.
So I don’t think what you have here is a delegation — I know we discussed this previously — but it is the conferral of a legal, constitutional duty on the regulator that they may undertake section 35 consultations.
The question becomes: What is the standard by which that should take place is? If you’re a First Nations group and something like that is conferred on a regulator, what should take place as it relates to consultation? Is it just merely engagement or does it involve something more substantive like consultation? I’m not sure — I’m rather new to this position — of how many other statutes have a provision like this which actually confers this right upon a regulator to undertake section 35 consultations.
I believe the critical question here is: What legal standard should apply in a situation where there are existing section 35 rights — we know this through the Marshall decision, a Supreme Court of Canada decision — and should that be met through mere engagement or consultation? The answer to that question is clear; definitively, it must be consultation.
The evidence we hear through testimony is as follows, and we heard this from federal and provincial representatives, ministers and officials. The first thing we heard is that no consultation was undertaken, but rather limited engagement. Second, that limited engagement took place through two letters in the month of September 2022 and in the month of March 2023, with limited involvement from Sipekne’katik, who responded, and a discussion with Membertou First Nation. It is also clear from the evidence that we heard that the engagement that was undertaken was not considered to be consultation. This is from the federal representatives.
We heard evidence from Chief Peters and Jessica Ginsburg with the Mi’kmaq Rights Initiative. Chief Sidney Peters has the capacity as co-chair for the Assembly of Nova Scotia Mi’kmaw Chiefs. Now, the assembly is comprised of 12 of the 13 Mi’kmaq chiefs within Nova Scotia. The only band that is not part of the assembly is Membertou First Nation. We know that the assembly — and I have experience with the assembly being a chief previously — takes great cause and concern when they get their mandates. Certainly, they got their mandates from the 12 of the 13 chiefs within Nova Scotia. It so happened that both chiefs were present when the decision was made for Chief Peters to come before this committee and present his concerns with respect to Bill C-49 and its implications on Mi’kmaq rights. There is no divisiveness here with respect to First Nation groups within Nova Scotia. It’s quite clear that Chief Sydney had that mandate and he brought that mandate forward.
We heard from Jessica Ginsburg who said the bill is structured in a long series of strategic planning decisions. What she provided was that the consultation process should cover off all key decision points within the strategic planning process right from regulations to directives to principles to recommendations that lead to call for bids, submerged land licences and authorizations. Certain decisions she provided are constrained or already made by the time you reach the authorization stage, which is at the lower level. It so happened that it is at that lower level where we get testimony from the minister and his officials. That is where consultation takes hold.
There is a fundamental issue here. If consultation takes hold at the lower level of authorization, is it truly meaningful if it’s constrained from the higher levels of consultation? Thus, the amendment allows consultation to take place at key decision points in the decision-making chain.
We also heard evidence about the Mi’kmaq-Canada-Nova Scotia consultation terms of reference, which has been in existence since 2010. Hundreds of consultations went through this process. We heard evidence from Ms. Ginsburg, who said:
It is an ironic situation that we find ourselves in where a lack of consultation and even a lack of communication, even at a relationship level, where there have been meetings for years on the subject of energy. Yet it hasn’t even been raised in those meetings. . . .
I want to also provide another quote by David Arnot as well from that same Speech from the Throne. I couldn’t help myself, David.
Senator Arnot: No doubt, it’s really well-thought-out and articulated.
Senator Prosper: It’s brilliant. It reads:
There is an old concept in common law that I believe applies to our work. We must act in accordance with the honour of the Crown. . . . The honour of the Crown is a principle and a convention that requires, in every action and decision, the women and men who represent the Crown in Canada to conduct themselves as if their personal honour and family name depended on it.
I would like to conclude by conveying the words of Chief Peters:
. . . It really has put us all in a situation where we did not need to be here. We all know if it were followed the way it was supposed to be — but having said that, as you mentioned, no matter where it goes, we’re either going to please some people or get some people really upset with us. That’s always the way at any of these tables we go to. Do we want to try to work it out? Yes. We as the Mi’kmaw people want to do what is best for everybody, we want to help out and we know how important it is, but we are just so tired of being taken in a sense that, “Well, sorry we didn’t consult with you.” No, there was a way.
Even since we heard about the bill going forward, the minister has never, ever reached out to me. The province has not reached out to me to say, “What can we do, and how can we make this better?” We have had since June to say, “Let’s do something.” But I just don’t understand. How come they wouldn’t reach out to us as a nation? They reached out to a few First Nations, yes, but even when you read the letters that were sent on behalf, it talks about economic development; there is nothing really about consultation. . . . How do we, down the road, ensure that consultation truly happens? It has not been happening, and that’s the frustrating part. Then it boils down to — it is not a technical thing — it comes to the political side: “Okay, you have to make a decision politically. Is it the right thing?”
With that, I conclude my remarks.
The Chair: Before I have some questions, Senator Prosper, could you be specific and say, “On page X, we’re proposing these words and removing these words”?
Senator Prosper: Well, yes. I went through the amendment. I can —
The Chair: If you don’t mind because we have two or three people who —
Senator Prosper: Sure thing. I have my own convoluted notes here. Here we go.
That Bill C-49 be amended in clause 111, on page 86,
(a) by replacing line 1 with the following:
“111 (1) The heading before section 6 and subsection 6(1) of the Act are replaced by the”;
(b) by adding the following after line 2:
“Conditions Precedent for Certain Regulations, Decisions, etc.”;
(c) by adding the following after line 12:
“(2) The Act is amended by adding the following after subsection 6(2):
6 (3) The Federal Minister or the Regulator, as the case may be, shall consult with any council, government or other entity authorized to act on behalf of an affected Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982 before
(a) a regulation is made under section 2.1, section 59.1 or 98.2, subsection 98.3(2), section 128 or 153, subsection 188.25(1), or section 210.126;
(b) a decision is made under subsection 38.1(2);
(c) a directive is issued under section 41;
(d) the implementation of a fundamental decision is either made under section 34 or a fundamental decision is set aside or that setting aside is overruled under section 35;
(e) a licence is issued under section 91;
(f) a call for bids is made under paragraph 93(1)(a); or
(g) an authorization is issued under section 142.011.”.
The Chair: Thank you very much. There are some questions.
Senator Petten: I want to first start by thanking Senator Prosper for his thoughtful amendments to this bill. The duty to consult is based on the honour of the Crown and exists independently of the statutory framework. The minister has formally confirmed the commitment of the government to consultation. Minister Wilkinson wrote a letter addressing some of the concerns raised, and if the committee would permit me, I would like to begin by summarizing briefly what he wrote in his letter.
After hearing last Tuesday’s committee testimony and perspectives of Chief Sidney Peters, the minister agreed that Natural Resources Canada could have done more to ensure Mi’kmaq communities had more opportunity and information to participate in the engagement process in developing Bill C-49.
Presently, Indigenous groups, the public and various stakeholders are heavily engaged in this legislation’s sister process — the regional assessments for offshore wind — and Natural Resources Canada is providing $1.8 million over three years to help bring together Mi’kmaq and other communities to ensure an inclusive approach for offshore wind development in Nova Scotia. However, it is also clear from this testimony that more work must be done to ensure meaningful and ongoing dialogue with Mi’kmaq communities.
He reiterated that the Government of Canada is committed to ensuring ongoing and meaningful dialogue with Indigenous peoples as we move forward with the implementation of the framework of Bill C-49 in partnership with the Provinces of Nova Scotia and Newfoundland and Labrador — whether this involves consultation under the umbrella of the established tripartite terms of reference for a Mi’kmaq-Nova Scotia-Canada consultation process or engagement without prejudice outside of and permitted by the terms of reference — and that he takes the government’s relationship with the Mi’kmaq seriously.
As I have already mentioned, and as the minister states in his letter, the duty to consult exists independently of Bill C-49. The minister and Natural Resources Canada are committed to consulting on any matter that affects the rights and interests of Indigenous peoples throughout the full life cycle of offshore renewable energy development, a practice that is already well-established within the existing petroleum regime set out in the Accords Acts.
He then lists a number of steps where this consultation with Indigenous peoples will be taking place. Some of the steps at which consultation and engagement will be required include regional assessments; wind energy area identification processes; call-for-information processes; impact assessments and Accords Acts assessments for specific projects; regulatory authorizations and permitting decisions; and the development of regulations and other tools.
The minister then stated, and I quote:
I am personally committed to ensuring fulsome consultation and engagement occurs in the implementation of this legislation and all subsequent projects related to this legislation. I am also very personally committed to seeing ongoing economic benefits flow to indigenous communities for the development of a wind and hydrogen industry.
Furthermore, I would like to offer both my personal commitment and that of the Government of Canada, that we will dutifully address any observations with the appropriate action, response, and accountability owing such measures and will respond in writing.
Colleagues, what more could have been done, but more will be done to better consult and engage with Indigenous peoples. Section 6 of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act ensures that the federal Minister of Natural Resources consults with the provincial minister in Nova Scotia with respect to proposed regulation and, importantly, ensures the provincial minister is in agreement.
Should this change be made to this clause, there would be an inconsistency between the Accords Acts in Newfoundland and Labrador offshore and the Accords Acts in Nova Scotia offshore. The bill already contains provisions to affirm that the Crown may rely on the offshore energy regulators for the purpose of consulting with the Indigenous peoples of Canada. This approach is consistent with joint management, is guided by the honour of the Crown and furthers the objectives of reconciliation.
With humility and with great respect for Senator Prosper’s perspective and ongoing advocacy, I recommend opposing this amendment.
Senator Arnot: Thank you. I did speak earlier today with Senator Prosper, and I won’t be quoting what he said to me even though he quoted me — no, I’m just kidding.
I would say Senator Prosper is very professional, is a strong advocate and is very passionate, and I respect that. I respect his concerns and his deep-seated, valid frustrations that he has articulated so well here today on behalf of the Assembly of Nova Scotia Mi’kmaw Chiefs and on behalf of all Indigenous people in Canada.
But I have a pragmatic position on this issue today, and I want to articulate it and put it on the record. As Senator Petten has said, this is a critical piece of legislation. More to the point, it has the support of three governments — the Government of Canada, the Government of Newfoundland and Labrador and the Government of Nova Scotia. Indeed, the latter government — the Government of Nova Scotia — has already passed its mirror legislation in anticipation of this bill before us receiving Royal Assent.
The consequences of not passing this legislation expeditiously, without amendment, will be dire. As this committee is aware and some of my colleagues are aware, I’ve often spoken publicly and in the Senate about the rights of Indigenous peoples and the rights of First Nations based on the fundamental principle of fairness. I have also written on the subject of the honour of the Crown in an academic article published in the Saskatchewan Law Review in 1996. The honour of the Crown is the highest possible standard of conduct which applies in this case to the three governments who negotiated the contents of Bill C-49 and the mirror legislation. It asks that they act in concert in the best interests of First Nations and demands that there is no unfair or sharp dealing.
However, frankly, I see the honour of the Crown being fulfilled in this legislation. I see the concerns and considerations of the Indigenous peoples and the organizations that exist in Newfoundland and Labrador and Nova Scotia well represented in this legislation. I also see the economic interests of all people in those provinces being considered. More to the point, the energy needs and the environmental considerations are built into this legislation.
This amendment will not only gum up the works for this legislation, but it will also delay implementation and important and necessary investment. This amendment is well-intentioned, but it is far too prescriptive. It is for this reason that laws and legislation are not overly prescriptive, that they are open to interpretation and they have the opportunity to be living documents — and Bill C-49, in its unamended form, is a living document. It gives the provinces and the federal government the opportunity to work together, and — this is a big “and” — it relies on section 35 rights of Aboriginal peoples in the Charter. The involvement and best interests of Indigenous people are baked into this legislation. It is not matter of Indigenous people being asked to blindly trust governments. The language is there.
In the “Summary” section, at (p), it asserts:
. . . that the Crown may rely on the Regulators for the purposes of consulting with the Indigenous peoples of Canada and that the Regulators may accommodate adverse impacts to existing Aboriginal and treaty rights recognized and affirmed in section 35 of the Constitution Act, 1982.
I will add another very important consideration to the discussion, and it is this: There is a corollary to the honour of the Crown, and that is the honour of the First Nations. In conversations with the federal government and the First Nations in my home province of Saskatchewan, the Federation of Sovereign Indigenous Nations, both agreed that the twin concepts of honour of the First Nations and the honour of the Crown are agreed by them to be foundational to all agreements. And I quote:
The treaty-making process contains within it the treaty principle of maintaining the honour of the Crown and the honour of the treaty First Nations in maintaining the treaty relationship. The respective moral and legal codes of the parties dictate that agreements made between the parties should be honoured. The parties have a mutual responsibility to maintain the treaty relationship, and there is a common understanding that there would be strict adherence and observation of the treaty promises. Equally important was the conduct and behaviour of the parties to honour and respect the commitments made in treaties.
In my opinion, these principles apply equally to the contractual relationships and the principle of reconciliation, which is at stake in this bill.
My read of Bill C-49 is that the honour of the Crown and the honour of First Nations is built into the legislation. Hence, this amendment — adding the word “shall” and more specific language that recognized groups “shall” have a full and fair opportunity to participate — will not support those two high moral principles, the honour of the Crown and the honour of the First Nations. Why? It will effectively cause actions and activities to halt when any recognized organization starts litigation proceedings rather than engaging in dialogue and meaningful, constructive solutions because they believe they are not able to participate.
The principle of honour is not intended to give one party a veto over the other. That is antithetical to a positive relationship.
I understand the spirit of the amendment being put forward by Senator Prosper, but this amendment will lead, in my opinion, to an unintended and negative consequence for this legislation — I accept that the Minister of Natural Resources Canada, speaking on behalf of the Government of Canada, intends to offer goodwill in working further with the other two governments and the First Nations. I accept that. I accept what he said and what Senator Petten has quoted.
I believe there is sufficient time after the passing of this bill for the Government of Canada, the Government of Newfoundland and Labrador, the Government of Nova Scotia and all First Nations stakeholders to cooperate, collaborate and compromise with the result that First Nations will have the ability to exercise the opportunity for employment, to have significant investment opportunities and to see economic reconciliation in action. I believe that this will be in the best interests of the Government of Canada, the Government of Newfoundland and Labrador, the Government of Nova Scotia and all Indigenous peoples.
I believe the amendments will, in fact, kill the legislation with the dire consequence of lost economic opportunity for all governments and stakeholders. I believe Senator Prosper’s concerns are valid, but I believe they also are best placed in the form of strong observations. For these reasons, I will be voting against the amendment proposed by Senator Prosper. Thank you.
Senator Gold: Thank you, Senator Prosper, for bringing these amendments forward. Thank you to my colleagues for your interventions. Like our former colleague George Baker said, but I will practise, “I shall be relatively brief here.”
I want to take a step back here, colleagues. I think we can acknowledge two complementary truths. A lot of progress has been made in recent years in terms of respect for the inalienable rights that are embodied and recognized in section 35 as well as the consultation and involvement of First Nations and Indigenous people in government initiatives. At the same time, we can acknowledge that there is a lot more work that needs to be done and progress that still needs to be made.
We need to acknowledge that these concepts have now become central to the work of government, to our national discourse and, indeed, to our discourse here in the Senate as the minister made clear in his recent letter to the committee. And that’s a credit to people like Senator Prosper and others who bring them regularly to the floor and to our attention.
These days, unlike 10 or 20 years ago, when a bill comes before the Senate, it is not just simply a handful of Indigenous senators who start asking, “Well, how might this affect section 35 rights?” or “Were there consultations?” and “Were they adequate consultations?” We all should and do ask these questions because we have become sensitized over time to the substantive importance of these questions, and we know Indigenous leaders and senators will continue to raise them proactively in committee and in the chamber if they are not adequately addressed.
In this case, the one before us, I think there were pretty good answers to these questions. The committee has heard from the Governments of Canada, Newfoundland and Labrador and Nova Scotia that First Nations did, in fact, participate in the development of this bill, and under this legislation, there will be robust involvement of Indigenous peoples in resource development projects going forward.
As we all know, and as Senator Arnot recently reminded us, section 35 rights are already affirmed in the bill. That’s in addition to the existence of UNDRIP, which has the force of the law, of course, and the Impact Assessment Act, in which Indigenous issues and references to section 35 figure very prominently thanks to the advocacy in this chamber and elsewhere.
Equally importantly, if not more so, several Indigenous leaders have told this committee that they support the bill and they don’t want amendments. Chief Terry Paul of the Membertou First Nation wrote to this committee:
Throughout the consultation processes concerning the offshore industry and the implications of Bill C-49, Membertou has been proactive. We have not only met but exceeded the milestones set before us, ensuring a balance between development and the preservation of our culture and environment. It is with this spirit of dedication and commitment that I urge you to proceed with the passage of Bill C-49 this spring.
In that same letter, Chief Terry Paul also noted:
In light of recent developments, we would like to re-iterate our support letter provided on June 12 for the swift passing C-49. We call for no amendments. We urge the Province and Federal Government to meet with our Mi’kmaq communities to discuss the concerns with the legislation and explore pathways to resolve outstanding matters.
I am pleased to say that Minister Wilkinson committed on behalf of the Government of Canada to follow through on this. Having spoken to the minister as well, I can assure colleagues that this will be respected. This will be adhered to.
This committee also heard similar messages of support from the Paqtnkek Mi’kmaw Nation and the Potlotek First Nation, whose leaders also called for expeditious passage of Bill C-49 without amendment, and these views were communicated to this committee last week.
We have also heard different views. I — as we all should and do — have great respect for Chief Sidney Peters and the mandate that was conferred upon him. The fact is that Canada has emerged from the Dark Ages of the government’s indifference to the way they run roughshod over the rights of Indigenous peoples.
Now we are in different period, a period full of grey areas, frankly, where governments do try in good faith to engage in meaningful consultations as has been the case here. Some Indigenous leaders are satisfied, and some are not. And this is going to be one of the most central changes to governance and public policy in the coming decades in this country. How do we define meaningful consultations? How do we determine if consultations have been sufficient, both quantitatively and qualitatively? And what do we do when confronted with the reality that Indigenous peoples are not a monolith and may have different and contradictory answers to these questions both in general and in specific cases?
I don’t have an answer even if I wore any of the hats that I could put on. Our children and grandchildren will probably still be working to answer them as part of the long-term work of reconciliation that will and must continue after we are all gone from this place.
But with respect to Bill C-49, I am of the view and the government’s position is — and it is no surprise to you, of course — that we should not further amend this bill. The governments involved have engaged diligently with Indigenous peoples, with First Nations — perhaps imperfectly, to be sure, as the minister acknowledged, but in good faith. Several First Nations leaders are passionate supporters of this bill in its current form.
The minister affirmed that he would work with the Mi’kmaq of Nova Scotia moving forward in the implementation of this legislation.
Once again, I conclude by thanking Senator Prosper for what you brought to the table here and for what I know you will continue to bring to our attention. But, colleagues, I will be voting against the amendment, and I respectfully ask you to do the same.
Senator D. M. Wells: I will actually be brief.
Senator Petten, you mentioned in the note you read that Minister Wilkinson will be personally committed. I think, Senator Gold, you also mentioned he would be personally committed. And, in fact, Senator Arnot also mentioned that there would be goodwill attached to the minister. Of course, the minister can’t pass these directives of personal commitment or goodwill to ministers that follow or to subsequent governments.
The other thing I wanted to mention is that UNDRIP, of course, is federal legislation. This is both federal and provincial legislation. In fact, it would be mirror legislation, so it would be exactly the same. I don’t think that UNDRIP can be forced upon a province — UNDRIP being federal legislation.
Those are the only comments I wanted to make. Certainly, clearly and obviously, ministers or governments can’t force their personal commitments on subsequent ones. I wanted to point that out.
The Chair: Thank you. Any other comments before we go to a vote?
Senator Prosper: Well, thank you, colleagues. I appreciate your comments.
Just looking at my notes, and I want to recognize Senator Wells for your comments on the longevity of a minister and the ability of a minister to bind a replacement minister in that same capacity, which I think is quite clear.
You know, Senator Arnot, you mentioned that the honour of the Crown has been fulfilled. There is also the honour of First Nations. You also mentioned a veto. I’m not suggesting consultation is a veto. What I am proposing is that the Crown undertake consultations because they are conferring a right to a regulator on section 35 consultations. How you can confer a right on a regulator under the guise of the honour of the Crown and not talk to First Nations?
Just imagine if you had a constitutional right. Imagine. That wasn’t just dropped out of the air; there was a lot of litigation, a lot of advocacy. It means a lot for First Nations when we talk about section 35 rights. If a government of the day chooses to say, “Okay, we’re just going to hand that over. We will retain certain aspects of it, but we will hand that over to a regulator, and we’re not going to consult.”
There have been no consultations. If there is anything that this record proves — the evidence before us — there was no consultation. It’s clear. What they want to put their backing behind is engagement, but somebody show me the legal definition of “engagement” and how it is linked to consultation. I put the question to Ms. Lixfeld when she was before the committee. The two are distinct. They are not related.
So there is the smoking gun. It’s not a far leap to consider when you look at the evidence and when you look at the facts; it’s clear. When Senator Gold says, “You know, the duty to engage in meaningful consultation as it is here” — it didn’t take place.
Then he goes on to say, “How do we find meaningful consultation?” Well, you undertake it. That’s how you do it. Then it’s up to the parties. It’s not a veto. Just certain things. And I agree — the honour of First Nations — they have to show and they have to prove their case as to how it is an adverse impact on their right. It’s not a free ride. I get that, but we’re not even getting out of the gate here.
So I guess I could go on and on, but I will just leave it at that because I really appreciate this opportunity. I’ve been working on these issues for quite some time. As you can see, I’m a bit passionate about them. I know the players. I know the systems and processes. There is no big dispute here amongst the First Nations groups. Yes, there is a deal in the making there, and I agree it is a good thing — economic reconciliation.
But 12 of the 13 chiefs in Nova Scotia backed Chief Sidney Peters, his position and his evidence here before today. That one, Membertou, yes, they’re not part of the assembly, so there is no big division here with respect to First Nations perspectives.
I will just leave it at that. I appreciate the opportunity and the dialogue. Thank you very much. Wela’lioq.
The Chair: Thank you very much. Let’s proceed with a vote.
[Translation]
Is it your pleasure, honourable senators, to adopt the motion in amendment?
[English]
All those in favour say, “yea.”
Some Hon. Senators: Yea.
The Chair: All those against say, “nay.”
Some Hon. Senators: Nay.
The Chair: I think the “nays” have it. Would you like a recorded vote?
[Translation]
Honourable senators, there has been a request for a recorded vote. I will first ask the clerk to name all of the senators present who are entitled to vote at this time.
Ferda Simpson, Clerk of the Committee: The Honourable Senator Massicotte?
Senator Massicotte: Present.
Ms. Simpson: The Honourable Senator Francis?
Senator Arnot: Present.
Ms. Simpson: The Honourable Senator Francis?
Senator Francis: Present.
Ms. Simpson: The Honourable Senator Gold, C.P.?
Senator Gold: Present.
Ms. Simpson: The Honourable Senator Kutcher?
Senator Kutcher: Present.
Ms. Simpson: The Honourable Senator Petten?
Senator Petten: Present.
Ms. Simpson: The Honourable Senator Prosper?
Senator Prosper: Present.
Ms. Simpson: The Honourable Senator Saint-Germain?
Senator Saint-Germain: Present.
Ms. Simpson: The Honourable Senator Verner?
Senator Verner: Present.
Ms. Simpson: The Honourable Senator Wells?
Senator Wells: Present.
Ms. Simpson: The Honourable Senator White?
Senator White: Present.
Ms. Simpson: The Honourable Senator Woo?
Senator Woo: Present.
The Chair: If any member present does not wish to vote, you may withdraw from the table now. The clerk will now call members’ names, beginning with the chair and followed by the remaining members’ names in alphabetical order. Members should verbally indicate how they wish to vote by saying “yea”, “nay” or “abstain”. The clerk will then announce the results of the vote. The chair will then declare whether the motion is carried or defeated.
Ms. Simpson: The Honourable Senator Massicotte?
Senator Massicotte: Nay.
Ms. Simpson: The Honourable Senator Arnot?
Senator Arnot: Nay.
Ms. Simpson: The Honourable Senator Francis?
Senator Francis: Abstain.
Ms. Simpson: The Honourable Senator Gold, P.C.?
Senator Gold: Nay.
Ms. Simpson: The Honourable Senator Kutcher?
Senator Kutcher: Nay.
Ms. Simpson: The Honourable Senator Petten?
Senator Petten: Nay.
Ms. Simpson: The Honourable Senator Prosper?
Senator Prosper: Yea.
Ms. Simpson: The Honourable Senator Saint-Germain?
Senator Saint-Germain: Nay.
Ms. Simpson: The Honourable Senator Verner?
Senator Verner: Yea.
Ms. Simpson: The Honourable Senator Wells?
Senator Wells: Yea.
Ms. Simpson: The Honourable Senator White?
Senator White: Nay.
Ms. Simpson: The Honourable Senator Woo?
Senator Woo: Nay.
Ms. Simpson: Yea: 3; nay: 8, abstain: 1.
The Chair: The amendment is defeated.
We will return to the text of the bill. Is clause 111 adopted?
Hon. Senators: Agreed.
[English]
The Chair: Shall clauses 112 to 121 carry?
Some Hon. Senators: Agreed.
Senator Prosper: On division.
The Chair: On division. Shall clauses 122 to 132 carry?
Some Hon. Senators: Agreed.
Senator Prosper: On division.
The Chair: Shall clauses 133 to 143 carry?
Some Hon. Senators: Yes.
Senator Prosper: On division.
The Chair: Shall clauses 144 to 154 carry?
Some Hon. Senators: Agreed.
The Chair: On division.
[Translation]
Senator Verner: I have a question.
For each of the groups of clauses you mentioned, my colleague indicated that they were adopted on division. Was that recorded?
Ms. Simpson: Yes, that will be reflected in the minutes.
Senator Verner: Okay. Thank you.
[English]
The Chair: Shall clauses 155 to 165 carry?
Hon. Senators: Agreed.
The Chair: Shall clauses 166 to 176 carry?
Hon. Senators: Agreed.
The Chair: Shall clauses 177 to 187 carry?
Hon. Senators: Agreed.
The Chair: Shall clauses 188 to 198 carry?
Hon. Senators: Agreed.
The Chair: Shall clauses 199 to 209 carry?
Hon. Senators: Agreed.
The Chair: Shall clauses 210 to 220 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 221 carry?
Hon. Senators: Agreed.
The Chair: Shall clause the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill, as amended, carry?
Hon. Senators: Agreed.
The Chair: Is it agreed that the law clerk and parliamentary counsel be authorized to make necessary technical, grammatical or other required non-substantive changes as a result of the amendments proposed by the committee in both official languages, including updated cross-references and renumbering of provisions?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
Senator Prosper: I would like to make an observation.
The Chair: Go ahead.
Senator Prosper: The observation is as follows:
There exists in Nova Scotia the tripartite Terms of Reference signed in 2010, which establishes a process for consulting on any legislation, policies, or actions by the federal and/or provincial government that may impact the rights of Nova Scotia Mi’kmaq. Chief Sidney Peters, who represents 12 of the 13 Mi’kmaw communities in the province received a mandate from all his member chiefs to ask for several amendments regarding concerns spanning from a lack of consultation requirements at key decision points throughout the proposed process to compensation to inclusive language on bidding on contracts.
This committee strongly disagrees with any process that does not honour the commitments made by the signatories of the terms of reference and encourages that the honour of the Crown be upheld in all future legislation and policy initiatives that impact Nova Scotia Mi’kmaq.
The Chair: Are there any comments or questions on the proposed observation?
Is it agreed that it will be added as an observation to our report? All in favour?
Hon. Senators: Agreed.
The Chair: Anybody against?
Is it agreed that the Subcommittee on Agenda and Procedure be empowered to approve that the final version of the observations be amended to the report in both official languages, taking into consideration today’s discussion, and with any necessary editorial, grammatical or translation changes as required. Agreed?
Hon. Senators: Agreed.
The Chair: Is it agreed that this bill as amended go to the Senate in both official languages?
Hon. Senators: Agreed.
The Chair: I would like to say that I was expecting to have this session with much more turbulence and fun today. I’m glad it worked out and that we achieved a positive result.
Senator Gold: Chair, congratulations for your role in this.
Colleagues, with your indulgence, I would like to say a very brief word. I know we recently received a letter from the Minister of Industry, Energy and Technology of Newfoundland and Labrador, Mr. Andrew Parsons, with regard to clause 28 of Bill C-49. I encourage you to read this letter, and I will be bringing it to the attention of the chamber at the report stage of our deliberations.
The Chair: Meeting adjourned.
(The committee adjourned.)