Hon. Lillian Eva Dyck:
Honourable senators, I rise today to speak at third reading on Bill S-245, An Act to declare the Trans Mountain Pipeline Project and related works to be for the general advantage of Canada, on behalf of Senator Sinclair.
I will now read into the record remarks from Senator Sinclair and move his amendments at the conclusion of these remarks.
Honourable senators, I rise today to speak to Bill S-245, An Act to declare the Trans Mountain Pipeline Project and related works to be for the general advantage of Canada.
Canada is founded on the rule of law, and we are bound to respect it. As many of you know, extensive litigation has been filed in opposition to the Trans Mountain pipeline expansion project. Seven First Nations have filed 10 legal challenges which assert, among other things, that the National Energy Board process was inadequate in its review of each nation’s interests in the impact of this project on their rights and title and that the required consultation was inadequate.
This case is currently pending before the Federal Court of Appeal in Tsleil-Waututh Nation v. Canada. The central issue of this case from the First Nation’s perspective is whether Canada adequately discharged its legal duty to consult the First Nations people affected by this project. The central issue this project as a whole has brought to the surface not only for this government but for all Canadians is the future of its relationship with First Nations.
The government has laid the foundation for reshaping its relationship with First Nations. It recognizes and supports Aboriginal rights to self-governance by enacting legislation such as the Cree self-governance legislation and by adopting international standards for the just and fair treatment of Indigenous peoples, such as the United Nations Declaration on the Rights of Indigenous Peoples, without qualification. The government has reiterated its commitment to forging a new relationship with the Indigenous peoples of this country and has articulated policy principles by which this relationship is to be fostered.
Canada has the tools it needs to move diligently toward reconciliation. The question now becomes: When will Canada begin in earnest to craft this new relationship with purposeful action? Is it only after the Trans Mountain pipeline is built? Is it only after this Senate approves a bill, the purpose of which, at best, is to provide political capital to this project? Is this how we are to use our responsibility as senators?
Colleagues, section 35 of the Constitution recognizes and affirms the Aboriginal and treaty rights of Aboriginal people. The Supreme Court of Canada declared that the Crown had not only a duty of honour but also a fiduciary duty to consult with Aboriginal people before approving projects such as the Trans Mountain Expansion Project. Fulfilling this duty should not be treated as a matter of convenience for this government; rather, it should be recognized for what it is: an affirmative and necessary obligation on the part of this government to act with honour, integrity, good faith and fairness in all of its dealings with Indigenous peoples. Other project approvals have been quashed by judicial decisions for failure to consult the Indigenous peoples impacted, and now the rule of law requires us to respect the judicial process currently pending.
The sponsor of this bill and pipeline proponents have repeatedly claimed that 80 per cent of Aboriginal communities affected by this pipeline have signed mutual benefit agreements with Kinder Morgan/Trans Mountain. They tout these confidential agreements as evidence that Aboriginal peoples have consented to the construction and operation of the pipeline through their territories. But First Nations leaders have this to say about these agreements:
Entering into these agreements was not consent. We felt this pipeline was going to get built whether we liked it or not, and entering into this agreement was presented to us as the only way to have a say; to ensure we could protect the environment and, by extension, our way of life; the only way to at least acquire revenue for us to become less dependent on the government.
Some First Nations were offered a signing bonus if they entered into one of these agreements, a signing bonus offered by the project proponent. Let that sink in for a moment. Does that sound like meaningful Crown consultation, and is that what we envisioned when the Supreme Court of Canada enunciated the consultation standards of Haida, Gitxaala and Tsilhqot’in?
Other First Nations describe these agreements as “just another divide-and-conquer tactic that’s been used on our people over and over again.”
A member of the Kamloops First Nation reminds us that:
The Government of Canada made our people so desperate. We have a housing crisis, a poverty crisis and they’ve made our people so desperate that they feel like they’re obligated to sign these agreements because they think that’s all they’re going to get.
A Ditidaht First Nation chief expressed a similar sentiment on behalf of his community, which also signed an agreement, stating:
We came to the determination, as a group, that [the project] was going to go ahead anyway. . . if we opposed it, we would have no way of addressing spills, because we would be disqualified from funding from Trans Mountain.
A Seabird Indian Band councillor said:
We’re not saying we agree with it. We’re just preparing for the worst.
Colleagues, the language of the sentiments expressed is not the language of a fairly negotiated and bargained-for exchange between equals. This is “the language of the powerless, of people with no leverage or bargaining power.” The First Nations communities impacted are the people for whom Canada has a fiduciary duty.
The sponsor points to the National Energy Board’s record of Kinder Morgan’s consultation with First Nations as evidence that they were consulted, insinuating the Crown has discharged its duty. We don’t know the explicit content of these mutual benefit agreements — just bits and pieces gleaned from the news reports — but we are to take the word of the project proponent that the agreements amount to adequate consultation and consent of First Nations, yet these confidential agreements are not subject to review or scrutiny?
Again, whether the duty to consult was adequately discharged is the exact question that is pending before the courts. This bill is not going to change the fact that we are bound by the rule of law, which requires deference to the court process.
In his testimony before the Senate Transportation Committee, the sponsor of this bill referred to two decisions of the Supreme Court of Canada — namely, theClyde River and the Chippewas of the Thames cases — with a proposition that:
They confirm that there must be open, honest and fulsome disclosure, and there must be meaningful consultations — we all agree on that — but at the end of the process, if there is not an agreement, there also is not a veto given to First Nations’ groups.
The sponsor’s characterization of these two cases only tells part of the story. In Clyde River, there is no mention of the word “veto.” In fact, the Clyde court actually says:
Where the Crown’s duty to consult [an affected Indigenous group with respect to a project under the Canada Oil and Gas Operations Act] remains unfulfilled, the NEB must withhold project approval. Where the NEB fails to do so, its approval decision should be quashed on judicial review.
— since the duty to consult must be fulfilled prior to the action that could adversely affect the rights in question.
But the court in Thames did state that “. . . the duty to consult does not provide Indigenous groups with a “veto” over final Crown decisions . . . .” The Thamescourt also recognized that:
[t]he constitutional dimension of the duty to consult gives rise to a special public interest” which surpasses economic concerns (para. 70). A decision to authorize a project cannot be in the public interest if the Crown’s duty to consult has not been met (Clyde River, at para. 40; Carrier Sekani, at para. 70).
First Nations impacted by this project are entitled to meaningful consultation by this government and have raised the issue of the inadequacy of that consultation in the pending legislation. They are following the rule of law and availing themselves of the very processes established precisely for this purpose: to provide a check on the balance of power and to ensure that no one is above the law.
This bill asserts that the government needs to intervene in order to ensure that this project is not “frustrated or delayed.” Let’s look at what the exercise of Canada’s declaratory power can do.
In the words of my honourable colleague Senator Pratte:
We should only pass Bill S-245 if we think it will improve the chances of the pipeline being built and help governments and stakeholders find a lasting solution to this crisis.
He stated further that he would vote against Bill S-245, because he was “convinced it would not help resolve the impasse. On the contrary, I think passing the bill would exacerbate tensions between opponents and proponents of the project.”
The declaratory power, which is what is contemplated by this bill, has been called the nuclear bomb in the federal arsenal. It has been used many times over the years but has not been used in decades. Why is that? The declaratory power represents the ability of one level of government to unilaterally usurp powers given to the other level, and this conflicts with the principles of federalism.
For this reason, there is no similar or analogous power in either the American or Australian federal constitutions. It also explains why this declaratory power has been used only twice in the last 50 years.
So why, then, are we being asked to pass this bill? Federal courts have already ruled that pipelines are subject to federal jurisdiction. See Campbell-Bennett v. Comstock and Burnaby (City) v. Trans Mountain Pipeline ULC.
Passing this bill will not absolve this government of its obligations to the Indigenous people impacted by this pipeline project. That is what the rule of law requires.
This government appears to place the blame for any project delays at the feet of B.C. Premier Horgan, but it is not that simple. Blaming Horgan does not blind people from the entirety of this situation, both as to the environmental impacts and as to the interests of First Nations.
Should my honourable colleagues choose to pass this bill — and I acknowledge that it is this body’s right to do so — I ask that the following amendments be made to ensure this bill reflects the entirety of this matter, to ensure that our obligations to First Nations and to the rule of law are reflected and to reflect our conscious consideration of the issues this bill raises.
Motion in Amendment
Hon. Lillian Eva Dyck: Therefore, honourable senators, in amendment, I move:
That Bill S-245 be not now read a third time, but that it be amended
(a)in the preamble, on page 1,
(i)by replacing line 8 with the following:
“Whereas, for greater certainty regarding jurisdic-“, and
(ii)by adding the following after line 13:
“Whereas parts of the Trans Mountain Pipeline Project traverse Aboriginal land;
Whereas there are currently legal actions by Aboriginal peoples asserting, among other things, that they have neither been properly consulted nor given their required consent in respect of those parts of the Trans Mountain Pipeline Project affecting Aboriginal land;
And whereas this declaration regarding the jurisdiction of the Parliament of Canada over the Trans Mountain Pipeline Project should not be read as abrogating or derogating from existing rights of the Aboriginal peoples of Canada;”; and
(b)on page 2,
(i)in clause 3,
(A)by replacing lines 5 and 6 with the following:
“that are carried out in accordance with the Constitution of Canada, federal legislation and the Certificate of Public Convenience and Ne-“, and
(B)by replacing line 8 with the following:
“December 1, 2016, are not unduly frustrated or delayed.”, and
(ii)by adding the following after line 11:
5 For greater certainty, this Act is not to be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the Aboriginal peoples of Canada by the recognition and affirmation of these rights in section 35 of the Constitution Act, 1982, including the right to be properly consulted and to provide their free, prior and informed consent when required.”.