THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, October 8, 2026
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 10:31 a.m. [ET] to examine the subject matter of Bill S-216, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada.
Senator David M. Arnot (Chair) in the chair.
[English]
The Chair: Good morning. My name is David Arnot. I’m a senator from Saskatchewan and chair of this committee.
I ask members to introduce themselves.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
Senator Quinn: Jim Quinn from New Brunswick.
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Prosper: Senator Paul Prosper, Nova Scotia, Mi’kmaw territory.
Senator Simons: Senator Paula Simons, Alberta. I come from Treaty 6 territory.
Senator K. Wells: Senator Kristopher Wells, Alberta, also Treaty 6 territory.
Senator McBean: Senator Marnie McBean, Ontario.
The Chair: Honourable senators, we’re meeting to continue our study of the subject matter of Bill S-216, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada.
For our first panel, we are pleased to welcome, by video conference, Mr. Andrew Leach, Professor, Economics and Law, University of Alberta; and from the Mi’gmawe’l Tplu’taqnn Inc., Derek Simon, Legal Counsel, and David Knockwood, Geomatics Professional and Indigenous Knowledge Researcher.
Welcome, and thank you for joining us today. We will begin with opening remarks, and then we will move to questions. You have five minutes each.
Andrew Leach, Professor, Economics and Law, University of Alberta, as an individual: Thank you very much, senators, for inviting me to appear for the first time before this committee.
[Translation]
It’s a pleasure to be with you by video conference from Edmonton, Treaty 6 territory.
[English]
During the Forty-fourth Parliament in 2024, I spoke to what was then Bill S-273, which sought to have Parliament declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada. The legislation before you seeks to accomplish the same objective.
As in 2024, it is my opinion that this declaration is of no legal effect in the context of the dike system because it is just that, a system, which operates on both sides of the New Brunswick-Nova Scotia border. For all intents and purposes, I would argue that it is already federal.
As you are aware, the declaratory power is a distinctive feature of our Constitution Act, 1867. The words “declared to be for the general advantage of Canada” don’t mean what you think they do in the sense that, while they appear inconsequential or sort of motion-style performative language, when they are included in federal legislation, they invoke one of the most sweeping powers of Parliament, which is the power to assume legislative jurisdiction over that which would otherwise fall within the provincial ambit.
I have three points I want to re-raise today from what I raised previously in 2024. First, the dike system is interconnected and spans the border, and as such is federal; second, the declaration brings with it no specific legal effect; and third, and perhaps more importantly for the measure before you, even if uncertainty is resolved through the declaration — if you believe there is some part of this where uncertainty holds — then that jurisdiction still carries no positive effect.
So what the legislation seems intended to do — which is to jump-start negotiations over funding the maintenance of the dikeland system — is not in any way affected by jurisdiction.
I will just emphasize, in the end, that it is not my intent to minimize the threat that exists from climate change and sea-level rise to this infrastructure and to this area of the country.
On the declaratory power, I would put some comments on the record for this committee. This declaratory power’s use is not particularly limited. It is limited in two ways: It applies to works and undertakings, and specifically those works and undertakings must be “wholly situate in one province.” The dike system simply doesn’t meet the second part of that test, and that becomes very apparent in the legislation.
In the absence of that condition being met, the incantation “for the general advantage of Canada” does not render the legislation invalid. Those words just take on their plain-language meaning: Yes, this is important for the advantage of Canada. It supports all the infrastructure that is there, but it does not trigger any specific changes in the division of powers unless those two conditions are met.
Insofar as section 4 declares these for the general advantage of Canada, since they are not works that are wholly situated in one province, I would argue the declaratory power is not available for such a work or is, at best, redundant.
Just to clarify a little bit on that point, if we think about the system of dikes, aboiteaux, culverts, et cetera, they really do lie on both sides of the border. There isn’t uncertainty in this case. And in the case of the Missaguash River water control structure, it is actually a single structure that crosses the border between the two provinces. If we look at paragraph 92(10)(a), the exception to provincial jurisdiction is for a work or undertaking extending beyond the limits of a province.
So I would argue that, rather than invoking paragraph 92(10)(c), which would be the case if this were a grain elevator or a particular piece of infrastructure within the province, the 92(10)(a) exception likely applies here.
It is functionally integrated. There is no sense in which the functionality of the system on the New Brunswick side of the border could function without the Nova Scotia side to fulfill its purpose of keeping the Bay of Fundy essentially at bay.
The next point I will make is there is a lot of precedent for using the declaratory power as a tool to resolve uncertainty. For example, with Bell Canada, international bridges and tunnels, et cetera, it is not clear where the international infrastructure begins and ends. We have seen courts do this for pipeline systems. Where does the Trans Mountain pipeline system begin and end, for example? Are the storage tanks part of the system? Are they federal or provincial?
However, I would say that’s not the case here. I have some legal history in my submission that I will not repeat here, but I will pick one example from Lord Macnaghten in 1905, regarding Bell Canada:
. . . but inasmuch as the works and undertaking . . . were not confined within the limits of the province, this part of the declaration seems to be unmeaning.
So it has no real force and effect because there is no uncertainty regarding the geographic extent of the Chignecto Isthmus or the dike systems that are part of protecting it from becoming part of the Bay of Fundy.
Just extending on that, even if we allow that there is a clarification role here — this is my second point — bringing this under federal jurisdiction brings with it no positive obligation for the government to fund, maintain or act in any way to support this system. It simply says they can make laws about it in the federal Parliament, but there is no ongoing obligation.
I know in debate on the previous legislation, Senators Quinn and MacDonald, I believe, have spoken about the coincidence of the federal declaration, for example, over the Champlain Bridge and the federal funding of its construction. But it is just that: a coincidence.
I took a look —
The Chair: Professor Leach, we are running a little over time here. Could you wrap up?
Mr. Leach: Sure. That’s all I was going to say.
Let me close by saying that there is a real, pressing problem of climate change here, so please don’t take my comments as saying there shouldn’t be maintenance. Please take them as a legal opinion on the impact of the legislation.
Thank you for your time. I’m sorry for running over.
The Chair: Thank you. Mr. Knockwood, please go ahead.
David Knockwood, Geomatics Professional and Indigenous Knowledge Researcher, Mi’gmawe’l Tplu’taqnn Inc.: [Indigenous language spoken.] Good morning, senators. Thank you for having us today. My name is David Knockwood, and I am an Indigenous Knowledge Researcher and geomatics professional with Mi’gmawe’l Tplu’taqnn Inc., or MTI. I’m here with MTI’s legal counsel Derek Simon. I am from Amlamkuk Kwesawe’k, or Fort Folly First Nation, which is about 15 minutes from the Chignecto Isthmus and the dike systems you are talking about.
My community and the isthmus are in the Mi’kmaw district of Sikniktuk, from which the Chignecto Isthmus derives its name. The isthmus has been an important cultural and transportation corridor for the Mi’kmaw people since time immemorial, with archaeological evidence dating back approximately 12,500 to 10,000 years. The isthmus, historically, has been a primary connective route for the Mi’kmaq. The Mi’kmaq, being masters of the canoe, would utilize the waterways and lands of the isthmus that connect the Mi’kmaw territorial districts in what is now Nova Scotia to the interior of the continent — as well as connection between the Bay of Fundy waters and the Northumberland Strait-Gulf of St. Lawrence portage route over the isthmus.
The isthmus is also home to critical, sensitive habitats and migration routes for several species important to the Mi’kmaq. It is a migratory bird corridor that has been internationally recognized. It is also the only corridor for moose to get into Nova Scotia, where they are currently endangered.
There are over 40 species at risk in the area. Members of my community have exercised and continue to exercise their rights on the isthmus. We have seen, over the years, significant changes to the landscape, including climatological, ecological, geomorphological and other changes. We have seen this through rising sea levels, the introduction of invasive species and the increase in climate instability with climate change.
With European settlement in the 1600s, the strategic and agricultural value of the region led to the construction of the dikelands and the draining of salt marshes. That led to the disruption of the natural deposits of marine settlements that helped the marshes keep pace with rising sea levels over the past 3,000 years. It also had a negative impact on the spawning and migration of salmon and other species.
As a result, the land has become less able to naturally adapt to ongoing sea-level rise.
One option we need to consider as we look at how to address rising sea levels is the restoration of free tidal flow, allowing the natural cycles of the accretion of silt and marine sediments to help the isthmus adapt to climate change, keeping pace with the rising sea levels. This would have added benefits for the species that inhabit this critical area, giving them more space.
Any development in that area is likely to have significant impacts on the species important to Mi’kmaw people and trigger a duty to consult with the Mi’kmaq.
Currently, there are several projects proposed for the isthmus, including a natural-gas peaker plant, a solar farm and an upgraded transmission corridor across the isthmus. Any work on the dikelands is likely to add to the cumulative impacts from those projects.
MTI follows a process called the Mi’kmaw rights impact assessment, but with so many projects proposed in one area, it is hard to properly address and mitigate all the impacts on the rights of our people. MTI has had significant concerns with the Province of New Brunswick’s duty to consult and its impact assessment process. While we are currently engaged in consultation with the province around the proposed work on the isthmus, we are concerned that the options being considered are unduly narrow and do not allow for adequate natural regeneration and buffers.
One advantage of this bill you are studying is that placing the isthmus under federal jurisdiction will allow a more robust consultation and impact assessment process. Compared to the provincial process, the federal process provides for better inclusion of Indigenous Peoples; gives more recognition to Indigenous knowledge in the decision-making process; has a broader scope of study, including cultural and socio-economic conditions and traditional land use; and aims to align with UNDRIP.
The Chignecto Isthmus is an important area for the Mi’kmaw people and will always be so. I look forward to any questions you have.
The Chair: Thank you, sir. We will now move to questions.
[Translation]
Senator Miville-Dechêne: I will put my question to Mr. Leach.
Are you getting the translation?
Mr. Leach: I understand you in French.
Senator Miville-Dechêne: It occurred to me you spoke French.
I would like you to clarify what you said. You said that because the dikes are interconnected and cross the border between New Brunswick and Nova Scotia, this is already federal jurisdiction. You’re saying that Bill S-273 has no legal effect. Did I understand you correctly? Is that what you said?
Mr. Leach: I’ll take the liberty of answering in English to be more precise.
[English]
Yes, that’s my statement.
We have some history — for example, the Westcoast decision of the Supreme Court — where the court is looking to what extent a particular part of an interconnected work is a federal versus a provincial undertaking. In this case, I would argue there is no real uncertainty. It is one integrated system that is a work or undertaking that crosses a border, so the entire system would be federal for the purposes of the paragraph 92(10)(a) exception to provincial jurisdiction. There is no need to declare it.
Senator Miville-Dechêne: If that is so, what is the real judicial utility of this bill?
[Translation]
Mr. Leach: Yes.
Senator Miville-Dechêne: Is there any real legal utility to this bill, given your analysis of it?
Mr. Leach: In my opinion, from a legal perspective, there is no uncertainty. We understand what the system is.
[English]
In this case, the utility comes from, perhaps, the political attention that might be focused. We have seen this with pipelines and discussion in that regard. However, I don’t think there is an impact in terms of either the responsibility for or the ability to make laws regarding it. New Brunswick and Nova Scotia can still make general laws regarding such implementation that would apply in the potential absence of federal law.
Senator Miville-Dechêne: So it is not a useful bill in terms of lawmaking or judicial analysis. Do you see any advantages with this bill from a judicial point of view?
Mr. Leach: From my perspective, no. If Parliament wanted to make a law today about this system, my sense is that they could do it absent the declaration because it is a work or undertaking that crosses provincial borders. To clarify, it would apply to the dikeland system, not the isthmus writ large. In terms of the declaration or jurisdiction, these just apply to the dike system, not the entire geographical extent of the isthmus.
Senator Prosper: Thank you to our witnesses for being here. I want to delve into your comments, Mr. Knockwood.
What we have been hearing from Mr. Leach is that there is really no legal effect. It is already covered and already federal through paragraph 92(10)(a), so what is the need for a declaration pursuant to paragraph 92(10)(c)?
However, Mr. Knockwood, you spoke to the actual implications of the duty to consult and some of the challenges you face within some of the processes that exist in New Brunswick with respect to consultation. Yesterday, we heard from Senator Quinn and Mr. Lyle Skinner about potentially having two consultative processes related to this dike system. Could you share your thoughts and maybe, Mr. Simon, you as well? What would be certain advantages you would see through a declaration through section 92(10)(c)? Thank you.
Derek Simon, Legal Counsel, Mi’gmawe’l Tplu’taqnn Inc.: Senator Prosper, and other esteemed senators, it’s always a pleasure. That’s a very good question. I don’t necessarily disagree with Mr. Leach’s analysis that, on a theoretical level, this may already fall within federal jurisdiction, but the reality is, on a practical level, what we’re seeing at the moment is two entirely separate consultation processes being run by two separate provincial governments. There is no federal involvement in consultation or impact assessment at all. So, currently, the Province of New Brunswick is in consultation with the Mi’kmaq of New Brunswick and the Province of Nova Scotia is in negotiation or in consultation with the Mi’kmaq of Nova Scotia, which doesn’t reflect the physical and geomorphological or cultural reality of the isthmus, which is a single interconnected piece of land. Our view is that while it might not have a legal effect, per se, in accordance with Mr. Leach’s analysis, it has a very practical effect on the ground in terms of who is being consulted, how that consultation is occurring, having a single, unified consultation process with Mi’kmaq on both sides of the border between Nova Scotia and New Brunswick as well as potentially bringing federal UNDRIP legislation into play as well.
So our view is on a constitutional level. Perhaps it is mainly clarificatory and confirms a legal reality that already exists, but it would have a very significant impact on the ground for the Mi’kmaq on both sides of the border.
Senator Prosper: Thank you, Mr. Simon. Mr. Knockwood, anything further?
Mr. Knockwood: Not from me, no.
Senator Prosper: Thank you.
Senator Batters: Thanks very much. I wanted to clarify something. First, Professor Leach, I certainly see that you have many credentials behind your name. When I see you frequently commenting in media, I know you to be commenting not on legal matters generally but on matters of energy, the environment and that sort of thing. When I look at your own website biography, it says that you are an energy and environmental economist and professor. Then it notes your many qualifications in other disciplines, and it says on your own website that you recently completed a master’s degree in constitutional law from the Faculty of Law at the University of Alberta. Is it correct that it is quite recently that you received a legal designation, and that, prior to that, you had many other credentials but a legal background was not one of them?
Mr. Leach: That’s correct. It was 2021, LLM and not called to the bar, nor pathway to practise.
Senator Batters: Not either of those things?
Mr. Leach: No.
Senator Batters: Okay.
To whoever wants to answer, either Mr. Simon or Mr. Knockwood, this bill expressly includes Indigenous governing bodies and Indigenous organizations among the persons with whom ministers may enter into agreements. What opportunities could this provision offer for involving your communities in the design, construction or operation of these works?
Mr. Simon: That is a very good question, Senator Batters. In fact, the Mi’kmaq and MTI were engaged on the drafting of this bill and were involved in discussions that led to Indigenous governing bodies being included. It could allow for agreements to include Indigenous knowledge. It could allow for agreements that allow for shared decision making, with respect to certain aspects of how the work is conducted. It is very broadly drafted and provides a lot of opportunities for direct Indigenous involvement in this very important piece of work moving forward.
As my friend Mr. Knockwood emphasized, the Mi’kmaq have a long history on this territory and, in fact, have lived through sea-level rise and climate shifts in this region. They have unique insights that they feel they could bring to this process in terms of dealing with climate change and how natural buffering and that sort of thing can contribute to climate change adaptation. It really opens the door, in our view, to a lot of opportunities to enter into agreements that would more directly involve the Mi’kmaq in these works moving forward.
Senator Batters: Great. Thank you. Do I have time for anything else? Thank you.
A further question to either of you, Mr. Knockwood and Mr. Simon. The preamble also now recognizes the critical cultural and historical significance to the Mi’kmaw and Acadian peoples. Could you explain what is at stake for the Mi’kmaw communities and how their knowledge could contribute to the long-term protection of this region?
Mr. Simon: I will defer to my friend Mr. Knockwood on that.
Mr. Knockwood: Thank you for the question. This has the potential to impact land use and the way our people use the lands through changes to flow regimes and to the migration patterns of fish and animals across the isthmus. Currently, fish and mammals and birds are all under stress as it is. Not taking into consideration the room and space that they need to thrive is going to add to those already negative impacts on those species. Currently, we are without much salmon. We have the inner Bay of Fundy salmon that come into the waters, which are listed as critically endangered. If we don’t take into account ways in which we can help these species, negative impacts will further diminish the species in the region and cut those ties between the land, the animals and the people.
Senator Batters: Thank you. I appreciate that.
The Chair: Thank you.
Senator Quinn: My question is to Professor Leach. First, the law professor Dwight Newman, in a committee brief on former senator Doug Black’s Bill S-245, which used the declaratory power for the Trans Mountain pipeline — clearly federal jurisdiction and clearly interprovincial — gave the following statement against fixating that the power can only be used for works wholly within a single province:
It is wrong for academics to go about asserting a limit on the use of 92(10)(c) that does not exist. It is flexibility available for use in accordance with the determinations of the federal Parliament.
Professor Leach, what are your comments on Professor Newman’s statement?
Mr. Leach: In the context of Trans Mountain, I think there is uncertainty. For example, we have seen Canada Energy Regulator proceedings regarding jurisdiction over the tank farms that feed petroleum into the pipelines. There is a legitimate question about where the specific work or undertaking begins and ends. Is a tank farm or a storage tank part of the Trans Mountain pipeline? Is it federal or provincial? The tank is clearly wholly situated within one province. That was the case in the Westcoast Energy case. Where does the infrastructure begin and end?
As I said in my introduction, where there are situations to resolve uncertainty with respect to where the infrastructure begins and ends, it may certainly be appropriate for the declaratory power. Beyond that, there is no limit on Parliament’s ability to pass legislation, and there is no validity question here. It is simply that I would argue the words used — if they are used for interprovincial infrastructure, in this case — are of no force and effect.
Senator Quinn: I will come back to the declaratory power on works. They are clearly federal jurisdiction. We have a number of examples. You quoted a couple as well.
They include the St. Lawrence international bridge, the Chignecto Marine Transport Railway, the Lake of the Woods international bridge, the CN Commercialization Act, the International Bridges and Tunnels Act and, just this year, the High-Speed Rail Network Act.
During the appearance of Justice lawyers in front of the Transportation and Communications Committee that were considering the division that dealt with high-speed rail, we had Justice lawyers say 92(10)(c) indeed was a practical tool for the government to consider because it brought clarity to the role of the federal government with respect to leading, for example, discussions with Aboriginal communities and environmental questions. We heard that this morning from our colleagues from Nova Scotia.
What you’re saying and what you’ve presented is your opinion, but the legal and factual record says there’s no limit to the type of work that can be declared to the general advantage of Canada, should Parliament so decide.
I want to add that, even in the bill that we’re considering now, the Budget Implementation Act, we had three ministers appear before us the other day. Minister MacKinnon noted that the declaratory power is being used to bring clarity in the case of terminals at ports that are clearly federal jurisdiction.
How do you square the circle regarding your opinion versus what Justice lawyers have told us to this point?
Mr. Leach: I don’t think there’s any conflict. My opinion is, in this case, it’s clear that the jurisdiction is federal. In the opinions you’re citing, they’re saying perhaps if there is uncertainty, then the declaratory power — for example, with high-speed rail, the service shops, the associated works and undertakings, there may be uncertainty.
Obviously, if you and others believe there is uncertainty, then perhaps it’s an appropriate tool. However, my sense is, given the definitions in the proposed legislation, there doesn’t appear to be a great deal of uncertainty about where this infrastructure begins and ends, as might be the case, for example, with an international bridge where the on-ramps, off-ramps, feeder roads, infrastructure, et cetera, might be in dispute —
Senator Quinn: Professor Leach, I have to stop you there.
The Chair: You can intervene. Go ahead.
Senator Quinn: If that’s the case, I have to ask why. This morning, we heard from folks who were consulted during the construction of the bill, but we’ve also had two provinces pass unanimous decisions in their respective legislatures, endorsed again last spring — in the case of New Brunswick, by a different government — that they endorse the use of declaratory power. So you have two provinces supportive of that. Municipalities, communities in the area, First Nations and Acadians are supportive of that.
So if you have all these people saying they want certainty and clarity from our region, the region I represent, then why do you have these doubts that the declaratory power is an invalid tool or of no use?
Mr. Leach: Again, I would be very clear that I have not said anything about the validity of the legislation or Parliament’s capacity to put those words in legislation.
Senator Quinn: You said it was of no effect.
Mr. Leach: Exactly. I said it’s of no effect. In this case, my case is consistent with everything you’ve brought forward. If I can refer to the Nova Scotia Court of Appeal reference non-decision, I think you’re referring to people who are answering a slightly different question. Would I like the federal government to take responsibility over this region and this important piece of infrastructure and fund its rehabilitation and maintenance? People are answering that yes, they would, and I would probably answer the same way.
Senator Quinn: I appreciate that. Again, you used the words “in your opinion.” In my opinion, I have Atlantic Canada — because we also have support from Newfoundland and Prince Edward Island — wanting to see this done for the different services that flow through the isthmus and whatnot for trade and health reasons.
The Maritime provinces in Atlantic Canada, in my region, are saying they want this to happen. I respect that you’re a professor in the West, but I have a whole region saying, “Let’s get on with this. It will bring consultations and environmental reviews together.”
I have lawyers saying this is a tool for Parliament, which you’ve acknowledged, but you believe it is of no effect. However, that’s your opinion.
Mr. Leach: That’s all I’m here to share, as I was invited to do.
Senator Quinn: Right. Thank you.
Senator Simons: Dr. Leach, to give you your proper title, to clarify, you’re a professor of constitutional law at the University of Alberta School of Law, correct?
Mr. Leach: I’m a professor of law. We don’t have field titles, although my masters is in constitutional law.
Senator Simons: Do you teach constitutional law?
Mr. Leach: I teach environmental and public utility law. I teach in, basically, subsection 92(10).
Senator Simons: And you’re an acknowledged expert in the declaratory power.
Mr. Leach: I hope so. I have papers that address it in multiple instances.
Senator Simons: So you’re a published author in this field.
Mr. Leach: Yes.
Senator Simons: I like the term you used, “incantation,” to describe this set of words. I wonder if you could delve into what you mean by that when you say it’s an incantation.
Mr. Leach: There is a specific set of words that, in particular circumstances, has a strong legal effect. We can think of others, like the “notwithstanding” clause, for example. If specific words are used in a specific context in federal or provincial legislation, they have a large effect.
Those same words used in another context don’t have any effect. For example, the federal government saying, “I think the oil sands are for the general advantage of Canada,” is an indisputable statement on its plain-language meaning. The federal Parliament inserting a statement saying, “The oil sands are declared to be for the general advantage of Canada,” that would have a very different implication.
That’s what I mean. In this particular context, to use the words in that context for a particular work or undertaking is extremely powerful.
Senator Simons: What are the dangers? Yesterday, we heard testimony that this is a largely symbolic move. We’ve certainly heard that people hope that this will focus national attention on an area that is facing a legitimate environmental threat, and we’ve heard from people that they would like the assurance that the federal government cares about this.
Mr. Leach: Yes.
Senator Simons: But what are the legal and political dangers of using legislation like this, not as a motion in the Senate but as a bill? What are the potential downstream consequences of that?
Mr. Leach: I think your language there is important. Effectively, if circumstances are such that there is no uncertainty to resolve, it effectively becomes a motion. It may be that Senator Quinn and others are confident that this will do exactly that — my friends Mr. Simon and Mr. Knockwood as well. If that is an implication of this bill, I don’t think there’s a downside to it. However, I think, understanding the implications of, in particular, section 4 in this context, to declare an interprovincial work to be for the general advantage of Canada would not add anything.
Senator Simons: Thank you very much for being here as a witness this morning in what is an early hour in Edmonton.
Mr. Leach: Thank you.
The Chair: I’m going to ask a question of the three witnesses.
I’m making an assumption that Bill S-216 will become law in Canada. I’m hoping you’re familiar with the Commissioner for Modern Treaty Implementation Act, which was co-developed by the Government of Canada and 27 First Nations based on principles of collaboration and cooperation. In my opinion, it is the gold standard because it deals with reconciliation in a modern context, the UNDRIP Act and the duty to consult. It’s quite comprehensive.
I’m wondering if it would be helpful from anyone’s perspective — Professor Leach, Mr. Simon and/or Mr. Knockwood — for this committee to make a recommendation that, in terms of consultation, to provide policies, practices, safeguards and implementation processes in this particular area of land would be developed in cooperation and collaboration with the First Nations and the Mi’kmaw people, and to provide appropriate capacity and support and recognition for Indigenous knowledge with safeguards for sensitive information.
In other words, if there’s a consultation, there should be recognition and accommodation. Do you think it would be helpful for this committee to make such an observation or recommendation from your perspective, particularly Mr. Simon and Mr. Knockwood?
Mr. Simon: I’ll take a first attempt at that, senator.
I’ll start by observing that, for the Mi’kmaw First Nations and the First Nations in New Brunswick, the historical, cultural and legal realities are slightly different than for the First Nations involved in the modern treaty implementation bill. In this region, we have historic Peace and Friendship Treaties, which predate Canada. They were entered into between 1725 and 1779. So, the aspiration of First Nations in this region is not to reach any type of modern treaty through a negotiation process but to achieve implementation of their historic treaties. That still involves a great deal of negotiation and a number of implementation agreements, but the process does look slightly different.
That being said, it has been MTI’s position for quite some time that the Wabanaki Confederacy nations of the Peace and Friendship Treaties would benefit greatly from a Peace and Friendship Treaty commissioner-type role that could provide some impartial guidance to the parties regarding those negotiation processes and processes of reconciliation. Something similar would certainly be welcome to MTI.
We provided a discussion paper during the UNDRIP implementation bill hearings before the House of Commons committee. One of the positions we put forward was the idea of a treaty commission for the Peace and Friendship Treaty, so that type of suggestion would be very welcome.
The Chair: I’m thinking of the principles in operation — working with First Nations with co-development, collaboration and cooperation. Thank you for that.
Mr. Knockwood, do you have any comments on that issue?
Mr. Knockwood: No, I think Derek summed that up pretty well.
I might go a step deeper into it, but on coming up with some type of development with First Nations on this project, the engineering has been complete already; they already have the three choices to choose between or whatever. At this point, it’s hard for First Nations to be involved in a meaningful way in the development of this project, because it doesn’t give us any opportunities to give any input on the design or how we go about securing these areas.
The Chair: Thank you for that advice.
Professor Leach, do you have any comments on those principles of co-development, cooperation and collaboration by federal government and First Nations in terms of implementing and creating policies, practices, et cetera?
Mr. Leach: I would mostly defer to my friends who are much closer to this question.
However, I would note that, insofar as a government — federal or provincial — is making a decision in terms of the structure of a particular project, that will affect the rights that Mr. Knockwood and Mr. Simon alluded to in the area and would, in my opinion, trigger a duty to consult, which would then, as you stated, be amplified by the UNDRIP in this situation.
The Chair: Thank you.
Senator Clement: Hello, and thank you all for your testimony. Mr. Knockwood, I take note of your comments that the federal process will likely be better than the provincial process in terms of allowing for a broader scope of study. Thank you for that.
I want to ask Dr. Leach a question. I’ve just come out of a rather distressing Energy, the Environment and Natural Resources Committee meeting, so I have environment on the brain. Given the Chignecto Isthmus is an environmentally sensitive area, could clause 7 potentially grant the federal government power to exempt itself from environmental assessment or other legally mandated processes?
Mr. Leach: That’s a question I have not considered. I would have to take a minute to think about that.
My sense is that, again, if it’s federal decision making, then the environmental assessment obligation is one the federal government imposes on itself, but that decision to exempt would, then, trigger what I was just speaking to earlier, which would be very important duties to consult those nations that would be affected by that decision. However, it seems as if we might be a step or two beyond in thinking about the specifics of what we would be assessing — the remediation action — what specific option it would be and what would be triggered in that.
Senator Clement: The concern I have here is that we haven’t really heard from environmental groups on this, and I feel as if the context has changed since the drafting of this bill in terms of the comfort or confidence that environmental groups might have about this current government and their attitude toward protecting environmentally sensitive areas.
Mr. Leach: I think that’s fair, although my understanding of clause 7 would be more in the context of where there was immediate restoration that needed to take place — it’s allowing that particular restoration to go forward without the normal bureaucratic procedures that would accompany something like an impact assessment. So, my understanding of the implementation of that would not be to avoid taking an assessment that would lead to action; it would be to allow you to take action, for example, in the event of a failure of the system, before irreversible damage was done to the environment; we’re not going to sit and say, “Wait. We need a Fisheries Act permit or an impact assessment of this.” Rather, we’re going to take emergency action.
Perhaps my friends have some additional comments on that.
The Chair: Mr. Simon or Mr. Knockwood, would you like to make any additional comments?
Mr. Simon: We probably share Mr. Leach’s view that the exemption in clause 7 is relatively narrow, but I do acknowledge the senator’s concern in the sense that when we refer to the federal impact assessment process potentially being more robust than the current provincial processes, there are bills currently before Parliament that might change that view somewhat. So, depending on what is done with Bill C-39, for example, the degree to which the federal process is more robust than the provincial process may change somewhat.
Senator Clement: You have it exactly. Thank you.
The Chair: Mr. Knockwood, did you want to make any further comments or are you satisfied with that?
Mr. Knockwood: I’m satisfied with my colleagues’ explanations.
The Chair: Thank you, sir.
Senator Batters: I wanted to ask a brief follow-up question, but I can wait for my colleagues to ask questions.
The Chair: Is it okay if Senator Batters asks a follow-up question before we move on? Okay, great.
Senator Batters: I wanted to clarify something. This committee really just has the part of this bill dealing with the actual legal and constitutional elements of it. Certainly, another committee — I believe the Transport Committee — has considered this bill, and not just the previous one, for the actual overarching part of it. However, our committee has received this bill for just that component of it.
I just wanted to make clear that this is not the only study of this bill that has been undertaken, including for this iteration of the bill. Thank you.
The Chair: Anything we do here goes back to the Transportation Committee for further dealings in the Senate. Thank you.
Senator Prosper: I have a question for either Mr. Simon or Mr. Knockwood.
There has been a lot of discussion around uncertainty or the lack thereof with respect to this being a federal undertaking, but I want to get into the uncertainty of the environmental assessment that might be utilized for this particular project. Senator Clement also expressed concerns. Even if it were considered federal, in light of Bill C-39, it’s a shifting environment.
I would like you to, if you can, underscore the importance of having one federal environmental assessment process as opposed to potentially two provincial environmental assessment processes. It’s pertinent to this committee because it relates to consultation and the constitutional nature of that. That is for either Mr. Simon or Mr. Knockwood.
Senator Simons: I’ll maybe take the first pass at that, if I may, senator. You’ve hit the nail on the head. Clearly, the isthmus is a single, interconnected ecological area, and the reality is that we currently have separate impact assessment and consultation processes going on.
As I said, the Government of Nova Scotia is consulting with the Mi’kmaq of Nova Scotia on what is happening on the Nova Scotia side of the isthmus, and the Government of New Brunswick is consulting with the New Brunswick Mi’kmaq on what is happening on the New Brunswick side of the isthmus. No one is taking the lead on a single unified impact assessment or consultation process that considers the isthmus as a unified whole, which is potentially where this bill comes in.
When we talk about the provincial process, the New Brunswick environmental impact assessment process is quite dated, and I think the province would probably acknowledge that. They have attempted to shoehorn consultation and impact assessment on rights into that process but not really in a way that makes it very functional. There’s no direct role for Indigenous knowledge in the process and no way in which it’s directly considered. Unlike the federal process, the Indigenous groups and the Mi’kmaq, in particular, are not part of the technical review process, so they have no ability to make direct information requests of a proponent. They are represented on the technical review committee by the provincial Department of Indigenous Affairs, and there’s no direct First Nations representative.
That’s in contrast to the federal impact assessment process, where First Nations are directly involved in the technical review process and have the ability to ask questions directly from the project proponent. So this is something that has very practical, on-the-ground realities in terms of how consultation is conducted. I think Senator Batters also quite rightly pointed to the ability to enter into agreements directly with Indigenous groups. Our experience has been that, absent a piece of legislation, a policy or something that provides the federal government and federal bureaucrats with authority to enter into those types of agreements, they’re very reluctant to do so. They usually need a cabinet mandate, specific legislative authority or a specific policy behind it, and no such mandate, legislative hook or policy exists with respect to the isthmus at the moment, as far as we know. On a very practical level, it allows for the types of co-developed approaches that Senator K. Wells was talking about as well.
Senator Prosper: Thank you, Mr. Simon. Anything further, Mr. Knockwood?
Mr. Knockwood: I would mention the salmon, in particular, could be affected by this project. These salmon have been under siege for the past 70 years, after the building of the causeway on the Petitcodiac River. This population has been squeezed and squeezed, and we have an opportunity to alleviate that and give them room to re-establish themselves in these waterways and rivers. These are not just important culturally for the Mi’kmaw people. If you look at the historical record, some of the first years that the Acadians were here, 1671 and 1678, in those years, the Acadians relied heavily on dried salmon and other fish as a source of sustenance while the areas they were diking off were developing for agriculture and while their herds of livestock were developing to support them.
We need to look at this as an opportunity to address some of the historical damages that have been done.
Senator Prosper: Thank you, Mr. Knockwood.
The Chair: Professor Leach would like to make a comment.
Mr. Leach: Senator, if I may, I was going to point out that subsection 9(1) in the Impact Assessment Act gives exactly the power to the minister to designate a physical activity, a project, for federal assessment, so that would not necessarily follow from this piece of legislation. But it is available to the federal minister to do exactly what Mr. Simon and Mr. Knockwood are talking about here, which is to trigger a federal assessment, even of an activity that would otherwise fall under provincial jurisdiction.
The Chair: Thank you, sir.
Senator Quinn: To the witnesses, this is to receive greater clarification. Would you say that this bill would have a clarifying aspect as to who has the lead regarding the duty to consult both in the environment and Aboriginal consultations? My second question is tied to this. This is the Senate, and it’s being considered by this house of Parliament, by this chamber. Should this bill not be given consideration to go from this chamber to the elected chamber so they too can consider what this bill is intending to do?
Mr. Simon: Thank you, senator. I think the answer to both questions is yes.
The Chair: Professor Leach?
Mr. Leach: It’s certainly well within the power of the Senate to send bills forward to Parliament. I don’t think anything I said would detract from that. The duty to consult follows from decisions of a particular level of government. So, in terms of the lead, it would depend on what the decision being made is. The spending could trigger it; so could any legislation, provincial or federal.
Senator Quinn: As a point of clarification, if I may, Professor Leach, you mentioned funding; the funding issue has been resolved. I want to have that on the record. That’s no longer a consideration. It was a distraction the first time around and shouldn’t be a distraction this time around.
The Chair: Okay.
Senator McBean: I’m trying to figure out if the language is interchangeable. I’m going to start with Mr. Knockwood. You spoke originally in your testimony about the significance of the Chignecto Isthmus. You were also talking about declaring the Chignecto Isthmus Dykeland System to be federally important.
Is it the same for you when talking about the cultural significance of the Chignecto Isthmus? Is it the same when talking about the cultural significance of the dikeland system?
Mr. Knockwood: Yes, I would say that having this under the federal processes would be beneficial for the cultural and the rights implementation issues that we were having in going through the provincial processes.
Senator McBean: Dr. Leach, with respect to the declaratory power, it normally focuses on the infrastructure itself: the rail system, the highway and so on. Is it important for Parliament to assume jurisdiction over the dikeland system, or — and I know you sort of spoke to how you feel about the declaratory powers — is it redundant because it’s already covered? Would it otherwise be more important to be pursuing measures that focus on and target directly the rail and highway and telecommunication assets, where disruption would have broader national consequences?
Mr. Leach: Just to clarify, the declaratory power includes not just the physical works itself but any activities associated with them. So, for example, there’s a case before the Supreme Court right now, on docklands infrastructure and to what degree labour relations, for example, within those businesses associated with physical work get captured by the declaratory power. There would be other potential implications beyond simply the physical. That’s true as well for the highways and rail lines. There is certainly some overlap there, in terms of federally regulated infrastructure and measures the government would take to correct them. But this particular piece of legislation is just about whether the paragraphs 92(10)(c) and 92(10)(a) exemptions from the provincial jurisdictions apply to this particular piece of infrastructure and the associated activities around it, not the broader isthmus itself.
The Chair: Thank you. Senators, we are concluding the testimony now. On behalf of the senators of this committee, to each one of the witnesses, we thank you very much for attending here today and assisting in our work. It’s been very helpful.
Honourable senators, we are continuing in public to discuss drafting instructions on the subject matter of Bill S-216, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada. A draft report has been prepared by the analysts for your consideration. It has been distributed in French and English. It has five introductory paragraphs for context. In addition, based on the discussions today, the analysts will finalize a report. So it will be ready for the committee’s review at our meeting on Wednesday, October 21.
Colleagues, I open the floor to comments and instructions to the analysts. If members have any suggestions or points they would like to reflect on in the report, now is the appropriate time to raise them. In addition, the clerk has circulated a potential observation that I proffer, in French and English, as well.
Senator Batters: In looking at the first five paragraphs circulated as a draft, dealing with setting everything out more generally, I’m fine with most of the introductory text.
David Knockwood needs to be added as a witness in paragraph 4. However, I’m not sure why we need to talk about, in paragraph 2, the previous bill and when it was introduced. It doesn’t add to this. We have had many bills introduced in one Parliament, and then, because it was, perhaps, a short Parliament, they weren’t able to go forward. We don’t typically talk about that. I don’t think it is necessary.
The Chair: Senator Batters has been heard on that issue. Let’s stick to that issue.
Paragraph 2 is redundant in the opinion of Senator Batters. I agree with her.
Are there any other comments on that from other senators? That will be struck.
As well, just for everyone’s notice, the analysts are going to add Mr. Knockwood and his title in concert with the others.
Are there any observations senators would like to put forward? I have one.
Senator Batters: I have a brief comment. It is not formulated as an observation, but I think it is quite something to have two provincial legislatures passing unanimous resolutions that they want the passage of this very bill. That regarded the previous iteration, but then they confirmed that.
I think that’s important for us to note in our report about this.
The Chair: Senator Batters is suggesting that it is important. It would be a paragraph that the analysts would draft to note that there are two provinces who have unanimously supported the passage of Bill S-216 in its current form. That would be the new paragraph 4. That’s the suggestion.
Senator Tannas: I support that, but I think we have to bring back, then, the mention that they unanimously supported the last one. They didn’t unanimously support it in the legislature, but Senator Quinn received verbal assurances that support continued. That’s the story. It wasn’t unanimous because now we have to bring it back in, right?
Senator Quinn: No, it was unanimous in the first go-around.
Senator Tannas: That’s what I mean. But then, with the new bill, you received verbal confirmation that they supported it.
Senator Quinn: From the governments themselves, yes.
Senator Tannas: But we have just taken out reference to the last bill, so now we need to put that back in, right?
Senator Batters: Or maybe it could be just substantially diminished to say, just in brackets, “the similar predecessor, Bill S-273,” or something like that to make a reference.
I don’t think we need to have a full paragraph talking about how it was introduced, then considered over several meetings, then died on the Order Paper and that sort of thing. I don’t think we need all that.
The Chair: Can we not just say that we heard evidence that the governments of New Brunswick and Nova Scotia fully support this bill in its current form based on what you have said? That’s simple.
Senator Batters: Sure, I agree. That is good. I do think it is quite a thing to receive a unanimous resolution. Then it could just be referenced to say that its similar predecessor, Bill S-273, and we don’t have to have all the other descriptions.
The Chair: Are the analysts happy with that? We will make the statement and ensure it is in concert with what was done in Bill S-273.
Senator Simons: I think it is incumbent on us to remember our duty here is to report on the legal matters to the Transport and Communications Committee. That committee did a very thorough review of the previous incarnation of this bill and wrote a report about the state of the Chignecto Isthmus.
What we were asked to do by the chamber is to provide the legal analysis to the Transport and Communications Committee. I think it is important that we focus our report on those legal issues, as presented by Dr. Leach and Mr. Skinner, primarily, and also by the lawyer Mr. Simon, from the First Nation.
The Chair: How do you propose that we capture that, then?
Senator Simons: I think we would say that the committee heard conflicting evidence about the legal meaning of the bill. We could begin with Mr. Skinner’s analysis and then have it rebutted in the report by Dr. Leach’s analysis.
I want to stress again that Dr. Leach was not chosen randomly. He testified at the Transport and Communications Committee on this bill and was chosen because he is a professor of law and a published expert in this field.
I think we should give due weight to his analysis that the bill is of no force and effect but counterpoised to Mr. Skinner’s testimony from yesterday.
The Chair: They are diametrically opposed.
Senator Simons: Yes. We don’t need to adjudicate which is correct. We need to turn this information over to the Transport and Communications Committee, which will actually vote on the bill, which this committee will not.
The Chair: Correct.
Senator Quinn: I think if we are going to do that, then, in balance and fairness, part of the testimony referred to the Department of Justice lawyers in my presentation yesterday.
Senator Simons: But we didn’t —
Senator Quinn: No, but, first, part of my testimony referred to the Justice lawyers that had been consulted in the past.
Second, Mr. Skinner is, indeed, a constitutional lawyer. He is designated as a lawyer because he belongs to a bar and practises constitutional law.
Senator Simons: I think I did not say otherwise, but —
Senator Quinn: No, but the professor is a professor of law. He is —
The Chair: We are not going to say which is better than the other. They are two diametrically opposed —
Senator Quinn: No, I know.
If we are going to do that, then our colleagues who read this report have to understand that — and maybe Senator Batters can help me with this — first, I think, even during our first go-around, which was three years ago, there was similar testimony. We heard other testimony, and we didn’t have such an observation in that report. I’m wondering how we can put equal value to testimony. I don’t know how that works.
Senator Batters, maybe you can help me.
Senator Batters: Yes, I think I pretty fairly — Professor Leach, as he would appropriately be called —
Senator Simons: He’s a doctor.
Senator Batters: He is not a medical doctor, so I generally call him Professor Leach, as he is a PhD.
Senator K. Wells: He is a doctor. Our witnesses —
The Chair: We need to have an orderly discussion here.
Senator Batters, you have the floor.
Senator Batters: Thank you.
I thought I pretty clearly asked Professor Leach about his qualifications. I said that, yes, he has many credentials. I read from his own website entry where he confirmed that, yes, he did recently receive his Master of Laws, and then he voluntarily offered that he has not been called to the bar and does not practise law. His credentials have been appropriately identified.
I don’t think we need to get into this person versus that person, but when we are talking about areas of constitutional law, yes, we heard from Mr. Skinner yesterday, who gave us a lot of information about that, including a description about previous Justice lawyers. So, yes, we need to make that reference.
When we are considering very precise discussions of law — and, frankly, we should also keep in mind that we did invite others who were not able to attend — we need to keep in mind what we’re looking at here. I think that we can say that we have some differing opinions, but then we need to provide some context as to what we’re looking at so it doesn’t look like one person said this and another person said that.
Let’s also use the bolstering effects of the Justice lawyers and two different provinces — I’m assuming both of their provincial legal departments also looked at this law in considerable effect, as I know always happens every time a province is majorly impacted by an act of Parliament.
The Chair: Okay.
Senator Tannas: There are two things that jump up at me, because I think the idea of just reporting what we heard makes sense. We heard testimony that there is nothing to disqualify the bill from receiving consideration and being passed. There is nothing that prevents it. There is no constitutional issue.
Second, we heard testimony of there being potential utility to the declaration. Those are the things that I heard. We had the one guy who said, “I don’t see anything,” but in the same panel, we had people saying, “We think this could be useful,” so there is potential utility to using this declaration.
I don’t know what else we need to report on, if there are other things. Those are the two things that stuck out for me.
Senator Miville-Dechêne: I will be short. I want to remind the committee that we also received a brief from Nicole O’Byrne, who was considered in the first round. Since we don’t have that many constitutional experts, we could add that. She basically says that —
[Translation]
“Bill S-216 meets the conditions to use 92(10)(c) as the Chignecto Isthmus Dykeland System and related works are declared to be works for the general advantage of Canada.”
Here, in section 1 of her brief, there is at least a confirmation that these steps can be taken. I don’t think this is hugely controversial, but I think it could help us, because it was sent directly to us since she couldn’t come to testify. Perhaps we could add that. The fact that it’s not an issue is on page 2 of her brief.
[English]
The Chair: On Senator Miville-Dechêne’s point, does anyone disagree? No? We will, therefore, incorporate it pursuant to her advice.
Senator K. Wells: I would like to put forward to the committee that Dr. Leach is eminently qualified to comment on this issue, and if there is doubt, we can invite him to submit his peer-reviewed publications that speak to his expertise.
The Chair: He has an opinion, he stuck to his opinion, he is well qualified to give his opinion and he came here to give it. We now have it. We don’t have to worry about some of these other issues. There is a difference of opinion, and Senator Miville-Dechêne has another opinion, which we have received and which should be incorporated.
Senator Prosper: I know there was discussion about the constitutional experts and aspects of that with Mr. Leach and Mr. Skinner. Certainly, within the mix and which I think is important is the First Nations’ legal perspective as well, from Mr. Simon. Senator Tannas commented about utility, which I think has a high value and which I don’t think is in dispute. I haven’t heard contrary evidence in terms of the value of, for example, one process versus two provincial processes, which is a legal matter. It gets to the core of consultation and the duty to consult. I would like some of that evidence to come to bear in that regard.
The Chair: The analysts have duly noted that.
Senator McBean: Returning to the note about the two provinces unanimously supporting it, we’re mentioning that they unanimously supported Bill S-216 — is that right?
The Chair: We will say Bill S-273.
Senator McBean: Sorry, yes. Bill S-273.
Senator Quinn: It was reaffirmed by them.
Senator McBean: Yes, but your testimony is verbal, right? And you are the sponsor.
Senator Quinn: I am the sponsor, but I also think that as an honourable senator, I talked to the Premier of New Brunswick and a minister who talked to his premier, and they said they’re supportive. I don’t think that should be absolutely thrown out as, “That’s Jim’s opinion,” if that’s what I’m hearing, because that’s not what our role is.
Senator McBean: I just want to check that we are not putting words into the mouths of the provinces.
Senator Quinn: We will talk after.
Senator McBean: I’m not — I’m just —
Senator Quinn: I hear it, as stated, as a little offensive. My role as an honourable senator was reporting what I did with respect to those two provinces, a minister, a premier and a minister who talked to his premier.
The Chair: I don’t think it was intended that way. We wanted to clarify.
Senator McBean: It is not. It is just you are also in the position of sponsor.
The Chair: But he did testify and gave evidence, and we know what his evidence was and we discussed that whole point earlier and clarified it, so I don’t think there is any need for further clarification to capture that.
Senator Quinn: Thank you.
The Chair: The two governments support this bill, Bill S-216, according to the evidence we heard.
Senator Batters: Yes. I wanted to say that oral testimony is often all we have at this committee. That’s why it is made in a public meeting, where it can be subject to challenge and somebody else bringing a different point of view about it. That didn’t happen.
So when we have that kind of serious testimony about that sort of thing, we take it as it has been offered, and there wasn’t any challenge to that. Believe me, I’m sure the governments and legislatures in these provinces are following this. If somebody had a challenge to that, saying that it was incorrect, we would have heard very quickly, either from the media or those legislatures themselves right after. We often need to rely on that because we often don’t have something in writing. We may have the testimony; sometimes we have both, but not always. That’s how we have to go about this committee.
It is similar to a trial, right? Sometimes you have written evidence; sometimes you have oral evidence. It is subject to challenge and different interpretations. But here, there was no different interpretation. Solidly, that’s what it was.
The Chair: All right. Thank you.
Senator Prosper: It might be worth noting how similar the two bills are, with the exception, I believe, of the non-derogation clause.
Senator Quinn: There are verbatim.
Senator Prosper: Almost verbatim.
The Chair: Okay. Do you want to go back and ensure that’s captured?
Senator Prosper: Yes.
The Chair: Are you able to do that? Okay.
Senator Simons: On a completely different point, both Senator Clement and I raised questions about section 7. I think some note of that should be taken in the report as well, because that was the other legal issue that came to the fore.
The Chair: How do you want that captured?
Senator Simons: I think you could just say that senators — you don’t have to name us — raised questions about whether section 7 would have implications for environmental standards, then the response from Mr. Skinner, the witness. Dr. Leach and Mr. Simon responded as well.
I want to ensure we don’t deal only with the issue of the declaration but also with the issue of the potential environmental import of section 7.
The Chair: Senator Clement, do you have some comments on how you would like to see that captured?
Senator Clement: I thank Senator Simons for raising it. I’m feeling a bit quiet now. Thank you, Senator Simons — just a reference to it, that we heard a response to questions raised. That’s it.
The Chair: All right. Are there any other comments for instructions to the analysts on what we’ve discussed so far?
I’m going to introduce an idea that I had, as an observation. What I’m trying to do is capture the notion that, assuming Bill S-216 is passed, then the federal government would have a responsibility to consult. In terms of the consultation, I would like to make note of the high bar, the gold standard, as being the type of consultation that occurred between 27 First Nations and the Government of Canada in co-developing a model to deal with treaty implementation in a modern context. The principles there are that, when you’re co-developing policies, practices, safeguards and implementation processes, there should be early and meaningful collaboration, cooperation, appropriate capacity and recognition of Indigenous knowledge with safeguards for sensitive information.
So it’s consulting, recognizing the issues and accommodating the issues. That’s a high standard that the Government of Canada has already set. If there is such a consultation to be conducted, it should be at that high standard. That’s the point of what I’m saying here: to protect the Mi’kmaw rights holders and have them involved at the very beginning. That’s the purpose.
It’s a recommendation to the Government of Canada: If you’re going to consult — which you have to do — do so using that high standard. That’s the point.
Senator Batters: Can I ask you a question? This is obviously a private senator’s bill here, not a government bill. I wouldn’t want there to be any confusion that makes it look as if this bill didn’t involve the necessary consultation, because an individual senator certainly doesn’t have the same ability to do that sort of thing. However, I also note that the Indigenous witnesses we heard from today seemed to be very happy with the consultation and involvement that they had in this process for this bill. I don’t want anything to diminish the very positive things we heard about that and also the opportunities that this bill, affecting their region, can have to impact their region in a very positive way.
The Chair: I’m not sure that you can connote that from what this is. This is on a go-forward basis.
Senator Batters: Right, I just kind of wonder about the last sentence, “Neither participation in co-development nor the ability to enter into agreements should be treated as a substitute for fulfilling applicable legal obligations.”
The Chair: I’ll take that sentence out.
Senator Batters: Thank you.
The Chair: Colleagues, at this point then, I see no other comments. The analyst will remove the comments, and there will be a draft report coming back to us on October 21 for our final consideration. Thank you very much, senators, for your participation here today and your advice to all of us. We’ll get full consideration of the next report at that meeting.
(The committee adjourned.)