Oil Tanker Moratorium Bill
Motion in Amendment Negatived
June 13, 2019
Therefore, honourable senators, in amendment, I move:
That Bill C-48, as amended, be not now read a third time, but that it be further amended in clause 4, on page 2, by adding the following after line 25:
“(1.1) The Minister may make regulations to revise the northern limits of the area described in subsection (1) if it is necessary to do so in order to ensure that the Nisga’a Nation has control over maritime access to the lands referred to in section 8 of the Nisga’a Final Agreement Act.”.
Thank you, honourable senators.
In amendment, it was moved by the Honourable Senator Patterson that Bill C-48, as amended, be not now read the third time, but that it be further amended — may I dispense?
Senator Patterson, will you take a question?
Yes.
Thank you. Are you aware, Senator Patterson, that in Senator Sinclair’s amendment, which you just mentioned a few minutes ago, it is written at 33(2), concerning the joint panel, that the Minister of the Environment must, no later than 180 days after the day on which this section comes into force, establish a committee to conduct a regional assessment. So it’s not five years for the joint panel; it is 180 days. Are you aware of this in the amendment?
Well, proposed subsection 32(1) says:
At the start of the fifth year after the day on which this section comes into force, a comprehensive review of the provisions of this Act must be undertaken by a committee of the Senate, of the House of Commons or both Houses of Parliament that may be designated or established for that purpose.
Is the honourable senator aware that in the amendment there are two steps? There’s the regional assessment, as per Bill C-69, which is the joint panel to conduct the regional assessment, and after that is completed, at year five there is the parliamentary review?
Yes, I’m aware of that, but we don’t know how long that process is going to take. We don’t know how easy it is going to be to obtain collaboration on a special committee with British Columbia, Alberta, Saskatchewan and any Indigenous governing body within the meaning of section 2 of the impact assessment act. This offers no comfort of an easy process forward for the Nisga’a, and worse, there’s no guarantee that they will get any satisfaction out of this process.
Do you have a question, Senator Griffin?
I have a question for Senator Patterson.
Senator Patterson, will you take a question?
Yes.
Thank you.
Senator Patterson, would you comment on how this amendment provides more of a binding requirement on governments to consider the wishes of the Nisga’a Nation? I supported Senator Sinclair’s amendment, but I am concerned about its non-enforceability. There’s no legal commitment, only political. The parliamentary committee may not meet in five years, and the government isn’t required to adhere to the recommendations from the committee if they advise modifying the moratorium.
For context, in my own experience when we were dealing with the Statistics Act, the government was required to do a review of the Statistics Act but seemed to forget to do so in spite of being legally required to.
Could you comment on how your amendment is complementary to the other amendment but provides more legal certainty for Indigenous communities respecting resource development?
I think my amendment is probably not in conflict with the amendment approved by this body today, but I welcome the opportunity to answer the question about how my amendment produces a binding requirement.
It does say the minister may establish regulations, and it may appear to be permissive in that regard, but the solemn honour of the Crown requires that Indigenous rights constitutionally protected under section 35 and expressed in the Nisga’a agreement must be respected by Canada. So if the Crown is to act honourably and respect the solemn rights constitutionally protected under section 35 for the Nisga’a in their modern agreement, then the minister will be required to respect their rights when they ask to assert those rights to lands they have settled in good faith with the Government of Canada.
That’s what’s powerful about this. If we vote in favour of my amendment, we’re actually expressing our respect for the rights of Indigenous people, and we’re serving notice on the Crown that if it is to act honourably, it must adjust its regime to respect the land rights of those rights holders. That’s what makes it binding.
With respect, it’s much more of a guarantee than is provided in Senator Sinclair’s amendment. Thank you.
On debate on the amendment.
Honourable senators, I rise today to speak in support of this amendment by my colleague Senator Patterson. I had actually intended to offer a similar amendment of my own, but I am pleased instead to rise today to concur with my colleague across the floor.
When I first joined the Standing Senate Committee on Transport and Communications some seven months ago, I’m not going to lie, I volunteered for the committee primarily because of my long career in journalism and my interest in communications policy in the digital age. I had no idea that I would, along the way, be put in the unenviable position of holding the deciding vote in committee on Bill C-48.
My decision to vote against the bill in committee was an extremely difficult one. In April, I had the remarkable privilege of travelling to Prince Rupert and Terrace, British Columbia, for public hearings on the tanker ban. It was an extraordinary opportunity.
We heard from passionate witnesses, from First Nations leaders, from environmental scientists, from fisheries workers, from local mayors, from grassroots community activists, both Indigenous and non-Indigenous, who spoke powerfully in support of the bill and who spoke with moving, poetic eloquence about the need to protect not just the waters of the northern B.C. coast but the vital salmon spawning areas of the stunning Skeena River.
I heard the emotion, the fear and the frustration in their voices, and I was deeply moved by their love for their lands and their waters. I saw first-hand just how beautiful and unique those landscapes and seascapes are.
So make no mistake, I do not stand here tonight as an industry shill or as someone who is cowering in fear of Twitter trolls. I haven’t been harassed and I haven’t been bullied into taking this position. I heard the voices of those passionate British Columbians who have fought long and hard for this tanker ban, and I understood their reasons. Indeed, I don’t just honour their words; I share their concerns. This is an area that does indeed cry out for strict environmental safeguards and for a far better regional response system to deal with any possible pollution that exists now.
I also stand here today as a proud Albertan —
I am very proud to be an Albertan.
I stand here as a worried Canadian. I say to you that Bill C-48, as written, isn’t just bad for Alberta and its oil industry, it is bad for our confederation.
Alberta is a landlocked province. The only way we can get our goods to Asian or European markets — our canola, wheat, lentils, beef and, yes, our oil — is by cooperating with our partner provinces in Confederation and with our federal government.
We entered Confederation in 1905 on that promise of being part of a larger united nation, a country where provinces help and support one another. Please, just as I tried to understand in British Columbia, try to understand the emotion, the fear and the frustration of Albertans who feel as though they are being told at every turn that they are not allowed to transport their most important export to new overseas markets and who feel that they are being told that they are not equal partners in our federal system.
It is absolutely right and appropriate that we take active measures to protect Canada’s northwest coast from environmental degradation, but slamming the door in Alberta’s face, imposing a permanent ban on allowing tankers to pick up oil from northern ports, especially while TMX is under review, that is a violation of the fundamental contract of Confederation itself. I fear it is giving aid and comfort to Alberta’s long-dormant separatist movement, a once fringe element which has risen from the ashes in a particularly troubling and virulent form, a movement borne out of frustration and rage which is being stoked, exploited and manipulated by others for political ends.
As an Albertan and a passionately proud Canadian, I am deeply worried about legislation that plays into that separatist narrative.
Ever since we first started hearing witnesses on Bill C-48, I have been striving to find a practical, sensible Canadian compromise, a way forward that does not cut off all hope for Albertans but which, at the same time, protects the integrity of the Pacific Northwest ecosystem and respects the rights and wishes of the Coastal First Nations.
The most obvious path forward at first seemed to be a designated shipping lane, an ocean corridor that would allow tankers a straight shot from a specific port out to open sea so that oil could move safely to market without having tankers transit down the treacherous Queen Charlotte Sound or the Hecate Strait. We are not maritime cartographers, my friend. It doesn’t seem logical for us as senators to take on the task of designating a specific marine corridor. We simply don’t have the expertise or the authority.
That’s when I realized it’s not our job to be shipping lane surveyors. It’s our job as senators to fight to uphold the Constitution, to fight, not just for my region, but for the good of the nation.
I return to the first-hand evidence we were privileged to hear when we were in Prince Rupert and Terrace. I return to the powerful words of the Nisga’a First Nation.
The Nisga’a territory lies north of Prince Rupert and north of Haida Gwaii. Indeed, it borders right up against the archipelago of southern Alaska. That’s important to the argument made by Senator Patterson earlier because it means that if oil ever were to be exported at a future new port on Nisga’a land and then out through international waters straight through the Portland Canal, it would minimize the risk of contamination to the coastline further south.
When Bill C-48 was conceived and presented as a symbol of reconciliation, it did not, I suggest, respect the treaty rights of the Nisga’a Nation, which is a signatory to a modern treaty with Canada — as Senator Patterson said, the first of its kind in Canada. The Nisga’a, as he eloquently argued, believe they were not properly consulted as per section 35 of the Constitution. They insist that Bill C-48 abrogates their rights to economic self-determination and their rights to assess and develop infrastructure projects on their own treaty territory.
While we were in B.C., we heard from other First Nations who were divided on the bill, such as the Lax Kw’alaams, and the tribes who were ambivalent, such as the Metlakatla, who favour a short-term moratorium but not a permanent ban.
In contrast, the Nisga’a have consistently presented a united argument in opposition to the bill. Both Senators LaBoucane-Benson and Patterson have quoted from President Eva Clayton’s letter, but I also to cite her testimony before our committee at the Terrace Best Western in April.
Now, I should be clear. President Clayton did not tell us that her nation wanted to see a pipeline run rough its territory. She did not say that the Nisga’a welcome oil supertankers in their coastal waters. Instead, she made a simple, compelling argument — that the Nisga’a want a say in what happens on their territory, just as they want the right to engage in their own environmental evaluation of any specific future proposal.
I quote from President Clayton’s testimony:
Allowing the provisions of our treaty to assess any potential project on its merits would ensure that scientific evidence plays an essential role in assessing impacts and informing decision making, instead of the current approach which unilaterally and arbitrarily enacts a blanket tanker ban over a particular region of Canada.
If we grant to treaty nations some rights to self-government, we can’t ignore those rights simply when it’s no longer convenient or doesn’t suit our political narrative du jour.
Is it in keeping with the spirit of reconciliation for the Government of Canada to say, in a somewhat patronizing and paternalist way, that’s it’s imposing a ban on this particular form of economic development on all First Nations along the coast, and it’s imposing that ban whether the nations want it or not, for their own good?
The Nisga’a treaty may not be convenient to the government in this instance. It is a treaty written in black and white. I ask you: Is there a way to honour the spirit and the letter of the Nisga’a treaty while still protecting the coast and, at the same time, to send a clear message back home to Albertans that they are respected members of the Canadian family?
Certainly, the amendment made by Senator Sinclair last night, and spoken to so eloquently by Senators Pratte, McCallum, LaBoucane-Benson and Woo, gets us part of the way there. I was proud to stand tonight and vote for their amendment, but I don’t believe it goes quite far enough. I believe Senator Patterson’s elegant amendment helps us to get the rest of the way there.
Right now, the Nisga’a Nation does not have a working deepwater port on its lands, but it has the potential to develop one in the watershed of the Nass River, in the treaty territory known as the Nass Area.
If you’ll allow me to cite from the Nisga’a Final Agreement:
“Nass Area” means:
a. the entire Nass watershed.
b. all Canadian watersheds and water bodies that drain into portions of Portland Inlet, Observatory Inlet, or Portland Canal, as defined in subparagraph (c), and
c. all marine waters in Pearse Canal, Portland Inlet, Observatory Inlet, and Portland Canal northeast of a line commencing at the Canadian border, midway between Pearse Island and Wales Island, and proceeding along Wales Passage southeasterly to Portland Inlet, then northeasterly to the midpoint between Start Point and Trefusis Point, then south to Gadu Point
The Nisga’a Nation owns and has control over development on Nisga’a lands. The nation also has comprehensive rights relating to consultation and environmental assessment over proposed developments in the rest of the Nass Area.
Those treaty rights are set out in chapter 10 of the Nisga’a Final Agreement, the Environmental Protection and Assessment chapter. Those rights are triggered anytime a potential project may reasonably be expected to have adverse environmental effects on residents of Nisga’a Lands or Nisga’a Treaty interests.
Therefore, be clear, Senator Patterson’s amendment in no way means that environmental considerations will be ignored or overlooked, especially not when Bill C-69, as amended, comes into force. Rather, it would give this nation a chance to manage its own lands, waterways and economic future. We would be respecting the legal and moral rights of treaty title holders, while at the same time leaving open the possibility of future development and extending hope to the people of my province. We could honour the constitutional rights of the Nisga’a while simultaneously defending the fabric of Confederation.
If we stand together in this chamber tonight, we could send the House of Commons a strong message that we are looking at this bill in a thoughtful, nonpartisan way — not as Liberals, Conservatives or independents, but as Canadian senators dedicated to serving the best interests of all Canadians. Thank you.
Will the senator take a question?
Of course.
My question has to do with the role of the federal government. I would like to draw your attention to the 1988 Supreme Court of Canada decision in R. v. Crown Zellerbach Canada Ltd.. In that case, the court ruled on a constitutional issue and found that ocean pollution is a matter of national concern and falls within Parliament’s power to legislate in respect of the peace, order and good government of Canada.
According to the court, marine pollution, because of its extra-provincial and international character and implications, is clearly a matter of concern to Canada as a whole. Accordingly, in 2019, it is reasonable for the government to seek to reduce, as much as possible, the risk of a catastrophic spill in a pristine and rich ecosystem and for Fisheries and Oceans Canada to classify that ecosystem as an ecologically or biologically significant area, under the criteria set out in the Convention on Biological Diversity.
It also seems completely logical to me that, in 2019, the federal government would be looking to protect the ancestral rights of First Nations and the economic well-being of residents of British Columbia’s north shore.
The rhetoric we’ve been hearing since the beginning has focused on the divide between Alberta and the western provinces and the rest of Canada. I don’t think that was the goal with this bill. Here’s my question. Knowing that Bill C-48 was an election promise, how —
I am asking the question. That’s what I was doing.
How can the economic interests of the oil industry —
I am very polite and always let you speak. I’m asking that the courtesy be provided to me also tonight. Someone from your group just did and interrupted me.
Order, please.
Your question please, Senator Moncion.
Right, here we go.
How can the economic interests of the oil industry and certain provinces take precedence over the environmental concerns Canadians have expressed?
I’m sorry, Senator Simons, but your time has expired. Are you asking for more time?
I’m very much asking for more time.
Five minutes, could be more.
Order. Is leave granted?
Thank you. I feel there’s a second question embedded in there, which deals with the issue of the Supreme Court decision. That speaks to precisely why Senator Patterson’s amendment is needed. I think it’s absolutely true that jurisprudence suggests that First Nations don’t have the right to regulate the waters off their shores. Senator Patterson’s amendment wouldn’t give them that right. It would simply exempt, if you like, that particular area from the full force and effect of Bill C-48. That is one of the weaknesses that might be in the amendment we passed earlier today. The non-derogation clause, as you correctly point out, may not do the job because of precisely the reasons that you cited in that judgment.
That, I would suggest, is all the more reason to support Senator Patterson’s amendment. It is the complementary part that goes with the amendment spoken to so eloquently by Senators Sinclair, Pratte, McCallum, LaBoucane-Benson and Woo last night. I think if we put these two pieces together, we would have the answer.
As to your other question, I don’t think the oil industry has any right to dictate to the government the nature of its maritime pollution policy. What I’m asking is a subtler question: What is the price of Confederation that we are willing to pay by refusing to compromise? I come back to the most eloquent words of Senator Woo last night. He said we shouldn’t be asked to choose between one extreme and the other. He was absolutely correct when he said that the rhetoric on both sides imagines consequences that are far exaggerated from what they are.
I’m going to come back to what Senator Woo said last night. We need to find a compromise. As much as I supported full-throatedly the amendment we voted on earlier today, I ask that the rest of you, whatever your party affiliation, seriously consider Senator Patterson’s amendment, which I believe honours both the spirit of the treaty of the Nisga’a and also speaks to a swell of very disturbing alienation in Alberta. Having lived through the National Energy Program, I thought I’d seen this before, but in the last 24 hours there is a rough beast shuffling towards Bethlehem and I don’t want to see it born.
Would the honourable senator answer another question?
Yes.
Thank you very much. Do you know who owns most of the oil industries and refineries on Nisga’a land?
I’m afraid I don’t. I didn’t realize there were oil industries or refineries on Nisga’a land.
Honourable senators, I rise to address the issue as to the compatibility of this particular amendment with the amendment that was passed last night by members of this chamber, because it has arisen in my mind that there are some issues of compatibility that should be brought to senators’ attention.
One of the issues that clearly arises is that this process, which is identified in the amendment provided for in this amendment by Senator Patterson, clearly circumvents the consultation process that was contained in our amendment last night. We think, in a united way — on this side at least — as this being the advantage of the amendment. It is the requirement that there be scientific studies that were done on the impact of the legislation, as well as the impact of any project that might be utilizing the waters in the area.
In addition, we pointed out there were benefits associated to the current economies of the First Nations in the area that also needed to be taken into account.
My concern with regard to this particular amendment is the use of the word “may” in the first line, which allows the minister to make regulations if he so wishes. In doing so, the minister could act unilaterally. The unilateral behaviour of ministers in the past have not always been in the best interests of First Nations. I point that out. I’m concerned that this one appears to be an authority that the minister is being granted without there being any limitations placed upon the exercise of that authority. No requirement to consult, no requirement to engage with other communities, perhaps a suggestion that it might be done with the cooperation of the Nisga’a Nation, but no obligation on the part of the minister to consult with other First Nations that are going to be affected.
This particular amendment also creates a marine corridor. There’s no question of that. The evidence that we have before us in this chamber is that the government has already gone on record. The minister has clearly said that they’re not prepared to accept a marine corridor because, as the minister so perhaps inelegantly put it, it’s like allowing a smoking table in the middle of a non-smoking restaurant.
If there were a spill in this particular area as a result of this permission granted to allow the corridor to be created, it would affect the fishing rights, the resource rights and tourism for the other communities that are directly interested in those elements of the industry and not necessarily the petroleum industry.
There is no requirement to appoint a process pursuant to the review process that we have created in the other amendment. It would appear that this particular amendment would allow more a stand-alone process with regard to the Nisga’a Nation.
As Senator Simons has acknowledged, there is no right of access in the Nisga’a Final Agreement Act that they have to the ocean waters. They have the right, of course, to control what goes on their lands, they have the right to construct on their lands, but they do not have the right to an access corridor, as might be suggested by this particular amendment.
I see there being some potential problems — and quite significant problems at that — if this particular amendment were to be adopted because it would be creating a conflict right in the legislation. I, for one, am going to be voting against it and I would encourage other senators to consider doing so as well.
Honourable senators, I will try and get two questions in here quickly. The first one is about what the senator has said is concern about the use of the word “may.”
You’re the jurist, but my understanding is that the use of the word “may” in connection with constitutional requirements, like the duty to consult and accommodate, is actually interpreted as a must. This amendment, would you not agree, in light of that jurisprudence, would bind the minister to develop regulations in full cooperation and consultation with the Nisga’a, whose comprehensive land claim is protected by the Constitution? Would you not agree with that?
Thank you, senator, for the question.
The question of when “may” means “must” and “must” means “may” is a conversation on the head of a pin that has been going on for generations in the legal community, going back to when we used to use the word “shall” and not the word “must.”
In order for the word “may” to actually mean “must,” there has to be a prior, existing obligation in the particular legislation in question which requires the minister to do something. In the course of doing that, he may make regulations so that he can do that. There is no existing obligation in this particular bill that creates that necessary interpretation. So I don’t necessarily agree with your interpretation in that regard.
The obligation to consult, of course, is becoming clearer and clearer with decisions of the Supreme Court of Canada. I think the obligation to implement the provisions of the Nisga’a Final Agreement Act might give an obligation to the minister to consult with regard to those areas affected by the final agreement, but the waterways outside of the territory are not one of them.
Does the fact that the minister has apparently ruled out an amendment — although there is some lack of clarity on that. Apparently he also said in another statement that he would be open to some amendments. Even if that’s true, that the minister has apparently ruled out an amendment, are you saying we should listen to the minister and ignore the concerns of the Nisga’a? We should have obeisance to the minister?
Would it not be preferable to do the right thing for the Nisga’a and their constitutionally protected rights and not be governed by a minister who has made prejudgments about whatever amendments might emerge in this house?
Who do we owe our loyalty to, the Nisga’a or Minister Garneau?
Thank you, senator, for that question. I interpret it as a question even though it was really a point you were trying to make.
I want to point out that there are inconsistencies between your version of what the Nisga’a are saying and what we heard the Nisga’a say when we consulted with them. We actually spoke to them about the particular provisions in our amendment, and they expressed a willingness to accept the amendment that we had drafted because they know that they have to get along with their neighbours. They know that they have neighbours to the south of them who are going to be affected by the tanker ban. They know that they’re going to be affected if there is any spillage from a tanker. They know that the tourism industry, the fishing industry from those communities and from their community as well are going to be affected by a tanker spill. Therefore, they were interested in the process that we identified needed to take place before there was any change in the tanker ban itself so that they would be able to cooperate with other communities to make sure it was done properly.
I understand you say that you spoke to the Nisga’a people, but that tells me you did not speak to the other nations, the coastal First Nations as well, and that concerns me.
Are senators ready for the question?
It was moved by the Honourable Senator Patterson, seconded by the Honourable Senator Stewart Olsen, that Bill C-48 be not read a third time, but that it be amended in clause 4 — may I dispense?
Is it your pleasure, honourable senators, to adopt the motion?
All those in favour of the motion will please say “yea.”
All those opposed, “nay.”
In my opinion the “nays” have it.
Having seen two senators rising, do we have an agreement on a bell?
One hour. The vote will take place at 9:54 p.m.
Call in the senators.
