Senator McCallum: I have spoken to Métis people, and I met with the Manitoba Métis Federation this morning. I have spoken to them about this amendment; they agreed with it. I said to them, “First Nations women are the matriarch of the Métis Nation because without them, and without the people who came over — the French, and the British — there would have been no Métis Nation.”

How can you say, Senator LaBoucane-Benson, that there were three groups here, when the Europeans hadn’t come, and there were only the First Nations? First Nations includes all the tribes that were here. It’s the original peoples — it is just that we can’t come up with one term. In Cree, we call ourselves nêhiyawak, but they didn’t take that into consideration — it’s human beings.

That’s why it is very important. This is truth and reconciliation. The truth is there were only First Nations and Inuit peoples when people landed here. Can you comment on that?

Senator McCallum: I’m not a regular member of the Indigenous Peoples Committee. I didn’t receive any mail. I did go out and ask those representing missing and murdered women. They said they come to our meetings, but they haven’t done anything. I have gone to Sixties Scoop; they don’t represent them. I have asked people in Manitoba, “What do you know about CAP?” and I have not heard anything.

Maybe other members received information, but I didn’t. I did talk with two of the administrators, and they’ve never provided information to me. Thank you.

Hon. Mary Jane McCallum: I wanted to go back to Bill C-218. With C-218 and the changes made to gaming and how the province manages it, the inherent right to gaming of the Mohawk, other Ontario chiefs and the Assembly of Manitoba Chiefs was impacted. When we talked to the Mohawks, they were unable to now practise this inherent right. There is a legal challenge to Ontario, which will go to court in February 2024.

So now we have C-218, and we have your bill. Will those two coexist together? How are the First Nations going to manage those two bills together?

Senator McCallum: Senator Cotter, there are a lot of unresolved issues here for rights holders in this bill. How will the lived experiences of rights holders in the Prairie provinces be meaningfully addressed when you see Alberta and Saskatchewan, with Manitoba not far behind, ignoring the rights holders in the acts that they are bringing forward? How do you see that being addressed in this bill?

Senator Cotter: As you will see in the bill, Senator McCallum, there is a requirement of consultation and dialogue with Indigenous leadership in the Prairies. That’s a mandate imposed upon the minister who coordinates this work, and, I presume, the other ministers who will have a role here.

Maybe I could answer this with an example of what I think is an opportunity lost in the past, but may be there in the future.

When you think about economic opportunity — let me focus on that first — the opportunities for Indigenous people, but particularly First Nations, have been badly circumscribed by treaties, treaty lands and reserves. I think you and I are on the same wavelength there. In fact, a lot of those, if you look at the maps — Saskatchewan is, perhaps, the worst case — are not just being put on small, postage stamp-sized reserves, but also at the margins of a productive economy in the province, at least in the days when agriculture seemed like the story. So Indigenous people and communities never had a chance to get off the ground.

The place where those conversations have been the richest have been in relation to traditional territories. Not the postage stamp-sized reserves, but the areas where First Nations tended to live traditionally, which often covered vast areas.

One of the ways of trying to build an economy is to create opportunities for Indigenous people and communities to tap into those resources. It’s tricky if you’re a provincial government because usually tapping into those resources — which conventionally provincial governments have understood to be theirs or belonging to all the people — are a source of revenue to run the programs of the province. What you need is a partnership with the province and the Government of Canada because in the Constitution Indians and land reserved for Indians are the constitutional responsibility of Ottawa. It’s possible for the Government of Canada to support those developments, sometimes with support for equity, but also support for sharing the constraints or the opportunity costs for the provinces.

Ottawa has not always been open to that. I don’t know where this will go. I am hoping that imaginative ideas to unlock that potential that was taken away will occur. There are people a lot smarter than me coming up with these ideas, but I think there is a remarkable amount of potential to do that if the goodwill is there.

Provinces are vulnerable in some respects. Sometimes when oil revenues and others are really good, it looks pretty good, but provinces are vulnerable to having to give up large amounts of their tax base. But partnerships with the Government of Canada, which has a fiduciary obligation here and was the mechanism for taking away that opportunity, I think there is a duty that rests with Canada.

I hope that is at least partly helpful.

Hon. Mary Jane McCallum: Honourable senators, I am going to quote a submission of Grand Chief Garrison Settee, Manitoba Keewatinowi Okimakanak, Inc., or MKO, to the Standing Senate Committee on National Finance on Bill C-32, with specific reference to Part 4 of Division 3, framework agreement on first nation land management act:

The efforts by the MKO First Nations to make and enforce laws and By-Laws to respond to the COVID-19 pandemic uncovered and starkly illuminated that the previous two attempts by Parliament to create or support Indigenous self‑government through Bill C-428 in 2015 and Bill C-49 in 1999 have created “stranded regimes” of First Nation laws and By-Laws that are not subject to prosecution and therefore are unenforceable or will not be enforced by police.

This exists all across Canada. I heard the senator say that it’s only for one band, but it occurs for every single band.

This submission will address the “stranded regime” of First Nation laws pursuant to the former Bill C-49, the First Nations Land Management Act.

The experiences of MKO and the MKO First Nations indicate that Part 4 of Division 3 of Bill C-32, being the proposed Framework Agreement on First Nation Land Management Act, should be amended to ensure clarity on enforcement and prosecution such that no doubt remains in terms of an obligation to enforce and prosecute First Nation laws enacted pursuant to the agreement. Otherwise, we will see a return to or continuation of the limbo of what MKO describes as a “stranded regime” of First Nation laws enacted by First Nations pursuant to an act of Parliament that — through the policies applied by Canada and RCMP — are not recognized as valid, are not subject to prosecution and are not enforced by RCMP or police.

MKO can only describe as horrific the experiences of the First Nation Land Management Act community of the Misipawistik Cree Nation at Grand Rapids, Manitoba in their efforts to apply and enforce an Emergency COVID-19 law enacted pursuant to its land code without the support of RCMP.

On May 25, 2021, Chief Heidi Cook of the Misipawistik Cree Nation recounted the community’s experiences during an outbreak of COVID-19 in the winter of 2020-2021 to the House of Commons Standing Committee on Indigenous and Northern Affairs:

During that time, it was expressed by the members of our pandemic emergency response team, our health team and our enforcement team that we felt abandoned. We were struggling to control the spread. Our second wave reached 155 cases and close to 300 contacts. We all suffered personal fallout. I feel that we all have PTSD from the situation we found ourselves in.

We have not enacted any laws after the expiry of our emergency law. The decision was, basically, what good is the law if it’s not enforceable? As a result, we haven’t done anything since then.

The experiences of the Misipawistik Cree Nation arising from the refusal of RCMP to enforce the measures in the COVID-19-related emergency law of the Misipawistik Cree Nation galvanized MKO to reach out to and join efforts with Chairman Robert Louie of the Lands Advisory Board (LAB) in January 2021. MKO and LAB closely collaborated to elevate these pressing and exigent First Nations public health and safety issues to the responsible federal and provincial ministers, to the Commissioner of the RCMP and to parliamentarians.

In a February 17, 2020 letter of response to myself, as MKO Grand Chief, RCMP Commissioner Brenda Lucki wrote:

The RCMP recognizes First Nations’ authority under the FNLMA. However, there are concerns as to whether the FNLMA Land Codes provide the legal authority to enact COVID-19 related laws. Pending further direction, the RCMP will continue to follow the processes in place with respect to the enforcement of COVID-related bylaws passed under the Indian Act, as well as enforcing applicable provincial laws.

Similar to the position of the RCMP Commissioner, on March 15, 2021, Kelley Blanchette, Assistant Deputy Minister, Lands and Economic Development, Indigenous Services Canada (ISC) wrote to Chairman Robert Louie:

I appreciate the frustration felt by First Nations who have taken on such fundamental aspects of their governance through the enactment of a Land Code, only to be forced to rely on Indian Act authorities to address the current COVID-19 pandemic.

While more analysis will need to be done, I have instructed my team to collaborate with you on options to expand and clarify authorities through the next amendments to the Framework Agreement.

During a May 21, 2021, virtual meeting between MKO, LAB and several senior federal officials and a number of senior officials from Manitoba Justice that was facilitated by ISC, the Deputy Director of Public Prosecutions, David Antonyshyn, is recorded in the minutes prepared by ISC as advising, in part:

PPSC mandate is to prosecute offences on behalf of the Government of Canada that is prosecuting laws passed by Parliament and reviewed by the Attorney General (AG).

Except in Territories where PPSC provides full prosecutorial services, PPSC shares prosecutorial authorities with provinces.

PPSC can prosecute under the Indian Act, as it is a federal statute.

PPSC perspective is that it does not have the mandate to prosecute under the Framework Agreement (19.10)/FNLMA (22(3)). Adjusting these legal frameworks for PPSC to play a role would require federal-provincial, federal-First Nation, provincial-first Nation discussions.

The RCMP Commissioner and ISC suggested that Land Code First Nations apply By-Laws enacted by a Council pursuant to the Indian Act to address the dilemma of a lack of enforcement and prosecution of COVID-19-related First Nation laws enacted pursuant to a Land Code. As Indian Act By-Laws had not been enforced or prosecuted in Manitoba for 25 years, this would be through the Protocol relating to the Enforcement and Prosecution of ByLaw(s) adopted pursuant to s. 81 and 85.1 of the Indian Act (Protocol) that had recently been developed by the Public Prosecution Service of Canada (PPSC) and the RCMP.

However, with the repeal of the Ministerial power of disallowance through the Royal Assent given to Bill C-428, the Indian Act Amendment and Replacement Act as of December 16, 2015, both PPSC and RCMP advised that no By-Law enacted after the coming into force of Bill C-428 would be enforced or prosecuted unless the By-Law had been reviewed by “an appropriate federal authority” for validity and Charter compliance. This meant that the duly enacted and published COVID-19-related Indian Act By‑Laws enacted after January, 2020 in response to the pandemic were “stranded” and would not be automatically eligible for enforcement and prosecution, even under the Protocol.

It is important to mention here that MKO, in partnership with the Manitoba Public Interest Law Centre, worked diligently over several months in 2021 with senior officials of ISC and the federal Department of Justice culminating on November 16, 2021, in an MKO Framework COVID-19 Health Protection By-Law that is acceptable to PPSC and RCMP for enforcement and prosecution pursuant to the Protocol.

It is also necessary for MKO to say here that at the outset of MKO’s deep engagement in the process to implement the Protocol and to urgently develop a Framework COVID-19 Health Protection By-Law that would be enforced by RCMP and offences subject to prosecution, MKO clearly expressed our objection to the policies of Canada and the RCMP that a duly enacted First Nation law or By-Law required review by the Attorney General or by an “appropriate federal authority”. It is the position of MKO that the First Nations laws enacted further to the authority of a First Nation pursuant to the First Nation Land Management Act and a By-Law enacted further to the authority of a First Nation pursuant to the Indian Act are subject to enforcement by RCMP and police and offences of these laws are subject to prosecution.

It is the application of these policies of Canada and RCMP to require review by the Attorney General of First Nation laws and By-Laws that has created what MKO describes as the two “stranded regimes” of First Nation laws and By‑Laws that have been duly enacted pursuant to Acts of Parliament that are expressly intended to implement the First Nation inherent right to self-government.

The non-enforcement and non-prosecution of a First Nation law pursuant to a Land Code required the K’omoks First Nation to enforce their Land Code by way of a private prosecution at a cost of $178,000. The B.C. Provincial Court observed that a private prosecution was necessary because the local RCMP had “no experience with this sort of thing” and that “both the Provincial Prosecution Service and Crown Federal have declined to assist K’omoks.” Prosecution options must be flexible as proceeding by way of private prosecution of all offences of First Nation laws is not sustainable.

LAB Chairman Robert Louie advised the APPA Committee on November 22, 2022:

We have come to find out over the last 20-plus years that Canada and the RCMP are not readily backing and enforcing the First Nation laws that First Nations have passed. It’s an issue that is bubbling. It’s something that we didn’t quite expect at the outset, but we’re working now with Canada and with provinces and with Attorneys General both at the Canadian and provincial levels to deal with this issue. We have a lot of work to do to get enforcement fully recognized so that First Nation laws can be accepted, enforced and, in certain cases, prosecuted. That’s a very big area.

MKO reiterates that our lived experiences indicate that unless Part 4 of Division 3 of Bill C-32, being the proposed Framework Agreement on First Nation Land Management Act, is amended to ensure clarity on enforcement and prosecution such that no doubt remains in terms of an obligation to enforce and prosecute First Nation laws enacted pursuant to the Agreement, we will see a return to or continuation of the limbo of what MKO has described as a “stranded regime” of First Nation laws enacted by First Nations pursuant to an Act of Parliament that are not recognized as valid, are not subject to prosecution and are not enforced by RCMP or police.

That is why MKO had wanted to present to the Standing Senate Committee on Indigenous Peoples and to the Standing Senate Committee on National Finance to clear this so that they don’t continue in limbo. I don’t understand why the Indigenous Peoples Committee didn’t make amendments to this or why they didn’t deal with the issues that were brought up by Robert Louie.

Thank you for your attention, honourable senators. I thank MKO who has provided all this information so that I could present it on their behalf. Thank you. Kinanaskomitinowow.

(On motion of Senator Dalphond, debate adjourned.)

Hon. Mary Jane McCallum: Honourable senators and minister, my home community of Barren Lands First Nation and 16 other Manitoba First Nations are connected to the provincial highway system by a winter road network that is open for only a few short weeks each year.

This once-a-year lifeline is essential for shipping truck loads of fuel, housing and construction materials, food and dry goods that must last until next year’s winter road season. Climate change is resulting in the winter roads opening later and closing earlier each year with the winter roads this year not opening until mid‑February and expected to close by March 15.

Will the minister please tell northern Manitoba First Nations what concrete action the minister is taking, as per your mandate letter, alongside the Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs Canada ministers to work in partnership with First Nations to chart collaborative strategies to adapt to the impacts of climate change?

Hon. Mary Jane McCallum: Tansi, Minister Duclos, and welcome. During the peak of the Omicron wave, First Nations communities enacted states of emergency and protective measures that extended beyond provincial public health orders to keep their members safe. Manitoba Keewatinowi Okimakanak, or MKO, represents 30 Northern communities. MKO and other members of the Manitoba First Nations COVID-19 Pandemic Response Coordination Team have reprofiled human resources from each of their partner organizations to meet the challenges arising from the current pandemic, including the deployment of rapid response teams into First Nation communities facing rising positive case counts. The COVID-19 pandemic has demonstrated ongoing First Nation collaboration between governments and service providers.

Will Health Canada provide ongoing funding to support First Nations in addressing systemic change in the health care system, and are you agreeable to meeting with MKO?

Hon. Mary Jane McCallum: Honourable senators, I am speaking on behalf of the Wa Ni Ska Tan Alliance of Hydro-Impacted Communities in Manitoba.

We welcome the opportunity to speak to this motion and offer insights into emerging urgencies and new threats, such as climate change, while also warning of the dangers posed by blindly accepting large-scale hydroelectric projects as a route towards the future reliance on renewable energy. Though the climate crisis offers a very real danger to all peoples of the world, promoted solutions must be founded in principles of justice and avoid the sacrifice of communities for the benefit of others.

The people who comprise our research partnership include grassroots individuals from a number of hydro-impacted First Nations in northern Manitoba who have expressed concern about the history and expansion of hydro power in their respective territories. Our alliance also includes researchers and academics from nine universities, as well as members of several local NGOs.

Northern Manitoba is home to many freshwater lakes and tributaries, some of which were critical to the earliest encounters and commercial activities that would eventually influence the settlement of Canada. Scholars have clearly documented the historic importance of several ancient tributaries such as the Churchill, the Nelson and the Saskatchewan rivers. For Ithiniwuk (the Cree), these tributaries sustained their ancestors and their communities for millennia. Beginning in the mid 1960s, however, a new industrial presence would irreversibly alter landscapes and reverse waterways.

During this time Manitoba, together with the federal government, embarked on a joint study which examined, in part, the feasibility of large-scale hydropower in the north. Not long after the completion of the study, Manitoba’s public utility ambitiously set out to “harness” the power of the waters in the region. Mega projects followed and in what would become known as the Churchill River Diversion and Lake Winnipeg Regulation projects, massive diversion channels were excavated en masse so water flows could be rerouted. The purpose for the dams along the Nelson River was originally to save money on electricity production for Winnipeg and other communities in Southern Manitoba, not for any environmental reasons. The public discourse on climate change and its connection with fossil fuels did not enter public discourse until much later.

The Churchill River Diversion affects the flow of the Churchill River which historically and naturally flowed into Hudson Bay. This river was, by the mid 1970s, intentionally and artificially rerouted via the Missi Falls Control Structure at the outlet of South Indian Lake. Its new path now flows through the Rat and Burntwood Rivers and eventually into the Nelson River system. The Province of Manitoba writes that “CRD is used for the generating stations on the Nelson River, which account for about 75% of power generation in Manitoba.”

Large-scale hydro projects like the CRD in Manitoba were made possible by a series of agreements and deal making spanning more than 30 years, affecting four generations, and counting, in numerous Indigenous communities. Dam building for commercial purposes, and export, was ushered in with the signing of the Northern Flood Agreement in 1977. While this agreement involved the Province of Manitoba, the Board of Manitoba Hydro, the federal government, and five First Nation communities collectively represented by the Northern Flood Committee, it was effectively triggered by the resistance of the Cree whose reserve lands would be flooded as a result of Hydro’s CRD and Lake Winnipeg Regulation projects. This agreement, which has been acknowledged as a treaty, was meant to mitigate a broad range of adverse impacts, the scope of which were not entirely known at the time of its signing.

The CRD has directly impacted more than 8,000 kilometres of shoreline. This is a conservative estimate based on available data sets from publications of shorelines around South Indian Lake, but the true numbers are difficult to calculate due to the inaccessible nature of supposedly public information. . . . Both the Manitoba government and public have to rely on the information provided by Manitoba Hydro, because they fund the vast majority of scientific studies on their projects and utilize strategies of divide and conquer when signing agreements with communities.

The South Indian Lake community and its people were self-sufficient, thriving and even prosperous, before the CRD project came to fruition, not having to rely on government intervention or support. The South Indian Lake Commercial Fishery was the third largest lake whitefish fishery in North America. South Indian Lake had an average annual income approximately seven times that of other Northern communities, because they were mainly reliant on fishing and trapping activities. Scientific reports on potential adverse impacts of the project were ignored by authorities and licences were granted for the Crown corporation to legally proceed.

The hydroelectric energy produced by these megadams has long enjoyed an undeserved reputation as “clean” and “renewable” energy. In the move towards addressing climate change through electrification, “greenwashing” of hydro power poses an emerging threat of ideological proportions. Ongoing dysfunctional and deep-rooted colonial structures, including jurisdictional gaps, also strain existing power imbalances in the region. This ecological footprint has resulted in impacts that have yet to receive due environmental consideration. Entire islands have been swallowed up. Historic and commercial fisheries have been decimated. Thousands of people and entire communities have been flooded, displaced and dispossessed.

Emissions from hydro dams are produced through the flooding of shorelines and forests, which introduces organic matter into the water that then decomposes, producing carbon dioxide, nitrous oxide, and methane. Flooding in northern Manitoba was not restricted to a single project or event. In the areas impacted by hydro operations, the water levels and flows are raised or lowered based on the demand for power. This results in ongoing inundation and/or de-watering of tributaries and produces greenhouse gas emissions on an ongoing basis. Hydroelectric reservoirs are a source of greenhouse gases and in individual cases can reach the same emission rates as thermal power plants. Independent scientific studies have shown emissions related to hydroelectricity to be severely undercounted. Rigorous monitoring of individual reservoirs is desperately needed, in order to ensure that they are not contributing significantly to climate change.

The shorelines of several historic tributaries throughout this region contain two histories and two competing narratives: one before hydro and the other after hydro. The former, life before hydro, represented an era where the people moved with the ebbs and flows of the land and waters, were independent, and sustained themselves on the very land and waters that have become critical to hydropower and its operations. Before hydro, the land and waters were pristine. Today these same lands, and the communities who relied on them, carry the cultural, social, environmental, and economic scars of a fairly recent and ongoing colonial encounter. The danger of marketing this energy as responsible, green, and clean, must be avoided; this energy is not without consequence and we have yet to measure the full scale and scope of its environmental footprint in terms of greenhouse gas emissions, its cumulative environmental impacts, or the ways it can exacerbate the climate crisis.

Renewable energy projects are desperately needed in the face of the climate crisis, but they must not be undertaken in a way that repeats the mistakes of the past. The hydro dams in Manitoba were developed in a colonial manner that did not prioritize collaboration with Indigenous Peoples or minimize environmental harm. Future energy projects should focus on renewable energies such as wind and solar that can be built closer to urban centres such as Winnipeg — reducing the amount of necessary infrastructure and fuel. These energies will also be less susceptible to future changes in our climate, unlike the susceptibility of hydroelectricity to a drought, such as we are currently experiencing in Manitoba. Northern Canada is also predicted to experience greater warming than the global average, signalling another reason to focus efforts on resilient solutions. We call upon governments and industry to seize the opportunity to develop innovative solutions to our energy needs and in a manner that does not contribute to additional environmental, socio-economic, and cultural degradation.

Today we are witnessing, across Canada, a shift in how the public views megadam projects. From Site C in British Columbia, to Keeyask in Manitoba and Muskrat Falls in Labrador, the cost overruns and unnecessary environmental harms are being weighed against the supposedly cheap electricity that they will produce. Indigenous communities have always been voicing their opposition to these projects, but the non-Indigenous public is finally starting to listen. We recommend that all public utilities and Provincial Governments in Canada collaborate meaningfully, in good faith, with hydro-impacted communities in order to receive consent on all existing and planned energy projects. We also recommend that an immediate moratorium be placed on all megadam construction. This moratorium should be maintained until proper research has been done into all aspects of hydro’s impact on climate change, including greenhouse gas production, release of sequestered carbon, and all other effects of hydro that worsen climate change.

Today, the very waters and lands that gave the region and the original peoples of that land life and meaning have been disrupted and destroyed, displacing many Indigenous communities. In this era of reconciliation, we offer you a brief glimpse of one more history, and one more story, that requires a reckoning and redress of sorts: it is the story of hydropower in Manitoba. Four generations have already been affected by large-scale hydro development. As we find ourselves amid a rapidly evolving climate crisis, the cautionary tales to be gleaned are many, so too are possibilities and opportunities. We need to keep the next generations in mind as we move forward towards a more just and sustainable future.

We thank Senator Galvez for raising this very important issue, and we also thank the Senate. Thank you.

(On motion of Senator Tannas, for Senator Black, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator McCallum, seconded by the Honourable Senator Dean:

That the Senate of Canada:

(a)acknowledge that racism, in all its forms, was a cornerstone upon which the residential school system was created;

(b)acknowledge that racism, discrimination and abuse were rampant within the residential school system;

(c)acknowledge that the residential school system, created for the malevolent purpose of assimilation, has had profound and continuing negative impacts on Indigenous lives, cultures and languages; and

(d)apologize unreservedly for Canada’s role in the establishment of the residential school system, as well as its resulting adverse impacts, the effects of which are still seen and felt by countless Indigenous peoples and communities today.