Honourable senators, I hadn’t planned on rising on this item. However, I do feel compelled to after Senator McNair’s question last week. He asked Senator MacDonald the following question:

Once again, though, I fail to follow the train of thought as to why it is necessary to exercise the declaratory power. There is nothing that’s requiring that. The funding is settled. The parties would be much better off starting the work and remediating the dykes.

For me, as someone from Nova Scotia who supports this bill, I want to explain why Parliament exercising the declaratory power is important. No, it’s not related to pressuring the government for funding. It has to do with the duty to consult related to Aboriginal and treaty rights, found under section 35 of the Constitution Act, 1982, and who has jurisdictional leadership regarding this duty.

When I started my career decades ago, Indigenous lawyers were arguing that the Crown, which signed our treaties, was indivisible. We continue to push back against the downloading of the federal government’s fiduciary duty to First Nations and other Indigenous Peoples to provincial governments. We have seen that there is an inconsistent standard at the provincial level for consultation.

Under this bill’s previous iteration as Bill S-273, Chief Rebecca Knockwood of the closest-impacted community, Fort Folly First Nation, better known as Amlamgog, testified before the Standing Senate Committee on Transport and Communications, noting the following:

Currently, there are real issues with how the Government of New Brunswick undertakes consultation. Under the consultation process in New Brunswick, we are often informed that a project has been determined to have little or no impact on Aboriginal and treaty rights or has been approved with little to no consultation with our communities. Provincial consultation to date on this project has been inadequate. Archaeological work has been conducted without full Mi’kmaq involvement. Likewise, the provincial environmental impact assessment process excludes First Nations from key aspects of the process, including the technical review committee.

As a result of these issues, we at MTI were forced to develop our own impact assessment process: the Mi’gmaq Rights Impact Assessment, or MRIA, Framework. While the federal government and proponents have had no issues in following this Mi’kmaq-led impact assessment process, the province continues to refuse to recognize it. Indigenous consultation under the federal guidelines and Indigenous inclusion under the federal Impact Assessment Act is more comprehensive than the New Brunswick process and aligns better with the MRIA process.

Deep and meaningful consultation is required for this project as well as a proper Mi’gmaq Indigenous Knowledge Study. For a project of this significance in our culturally significant area, we feel a federal impact assessment is necessary. We feel this bill will assist in ensuring that the federal government has a significant role in both the consultation and impact assessment processes and a greater likelihood that the process complies with the MRIA. Considering the significance of this area for the Mi’kmaq, considering that the federal government’s consultation and impact assessment process is more thorough and considering that we cannot afford to wait for the jurisdictional battle to be settled, the Mi’kmaq chiefs in New Brunswick would ask you to support the bill put forward by Senator Quinn. The land should be transferred to federal jurisdiction until this project has been completed. . . .

Ms. Jessica Ginsburg, a lawyer for Kwilmu’kw Maw‑klusuaqn, also known as KMKNO, and the main negotiating body for the Mi’kmaq of Nova Scotia, noted:

The Mi’kmaw Nation has a general interest in all lands, waters and other resources of Nova Scotia, as the Mi’kmaq have never surrendered, ceded or sold their Aboriginal title to any of their lands and waters in the province.

The Mi’kmaq have a title claim to all of Nova Scotia and are co-owners of the lands, waters and resources of this province. Both Canada and Nova Scotia are aware of and acknowledge the title and rights claims of the Mi’kmaq and the fact that any potential impacts to Mi’kmaq rights and title are subject to the duty to consult and accommodate.

She goes on to say:

The question of how to uphold the Crown’s duty to consult in the face of potential regulatory exemptions and gaps needs to be addressed. The bill itself should contain a guarantee that decisions made pursuant to it shall be consistent with the goal of reconciliation and the Crown’s duty to consult obligations.

Any diminution of the consultation opportunities afforded to the Mi’kmaq of Nova Scotia is unacceptable. Before these lands were of significance to Canada as an economic and transportation corridor, they were of significance to the Mi’kmaq people as an economic and transportation corridor, with use and occupancy by Mi’kmaq since time immemorial. Today, the area continues to hold high significance for its long-standing traditional use, its archaeological potential both on land and under water and its spiritual significance in connection with Mi’kmaq legends. It is the focus of numerous consultations, and it presents economic opportunities for the Mi’kmaq associated with local infrastructure developments such as the new interprovincial transmission lines. It is therefore imperative that the Mi’kmaq continue to be involved with all of the multidimensional decisions affecting this important area.

While the New Brunswick government has recently changed, and there is a party more willing to negotiate and respect the rights of the Mi’kmaq in place now, we know that Nova Scotia has recently been failing in its duty to consult and cooperate with the Mi’kmaq. The lack of consultation has been so grievous that it has sparked mass protests in an area called Hunter’s Mountain, and it has prompted several emails from the Assembly of Nova Scotia Mi’kmaq Chiefs.

It is also of note that Mi’gmawe’l Tplu’taqnn, writing on behalf of eight of nine member Mi’kmaq communities, denounced the New Brunswick review process in their comments on the proposed “one project, one review” process and the cooperation agreement between New Brunswick and Canada.

In their letter dated October 8, 2025, they talked about how they feel consistently and systematically left out of key conversations and decisions, and went so far as to say that their concerns are:

. . . compounded by a provincial duty to consult process which routinely ignores or minimizes impacts on our rights. Substitution of the New Brunswick EIA process for the federal Impact Assessment process will result in less protection of Mi’gmaq rights in New Brunswick.

Colleagues, using the declaratory power allows the federal government to take jurisdictional leadership regarding the duty to consult. Further, it is also important in relation to the leadership of any environmental impact assessment process.

Senators, without the leadership of Parliament to invoke the declaratory power, the Mi’kmaq peoples are left necessarily divided across an arbitrary boundary line in the Chignecto Isthmus. We are a people divided between two provincial environmental impact assessment schemes and caught between two provincially led consultation processes that have been, in many ways, proven to be deficient in their ability to address Mi’kmaq concerns.

This is why I worked with Senator Quinn to ensure that there were explicit references to the importance of the isthmus throughout the bill and why I strongly believe that exercising the declaratory power is so important. By Parliament declaring that the Chignecto Isthmus project is “. . . for the general Advantage of Canada or for the Advantage of Two or more of the Provinces,” we are ensuring that the duty to consult and the honour of the Crown are held to the highest standard. We have very recent examples of consultation failing at the provincial level, and we cannot allow it to fail in this project, which is so significant to the Mi’kmaq and to Canada as a whole. Wela’lioq. Thank you very much.