Judith Sayers
Judith Sayers spoke 7 times across 1 day of testimony.
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Judith Sayers, President (Nuu-chah-nulth Tribal Council)
Yes, thank you. Judith Sayers, coming to you today from the Coast Salish territories, and I am pleased to be able to talk to you about Indigenous jurisdiction. And I'm going to talk about First Nations in particular. Indigenous people, as you know, includes Métis and Inuit. My expertise is First Nations, so I'm going to talk about First Nations. And First Nations have been here since, in our language, (Native word) or time immemorial, longer than any mind can know. Our governments have been in place that long as well, and were the first governments on these lands known as Canada. We had in place our own laws, protocols, communications, and looked after and protected our own lands and resources. All of the lands in Canada have First Nations title on them. They are within the territories of the over 633 First Nations across this land. Many different kinds of First Nations, there are number of treaties which are -- a lot of them are historic and shared their land to the depth of the plow. There are Aboriginal title lands in British Columbia which have never been subjected to treaties or session or discovery. Then there are modern treaties where the issue of lands and laws have been negotiated. Yet, as important as First Nations governments on these lands, the title and the role of First Nations in Canada, neither the Emergencies Act or the Emergency Management Act mentions First Nations as governments. Everyone else gets noticed, the provincial governments, municipal, but not First Nations, so there's no formal role to play when emergencies arise. Yet, when emergencies happen, it is First Nations' lives at stake, their lands, resources, and their ability to carry out their section 35 protected rights. The danger, of course, in not mentioning First Nations jurisdiction in the Emergencies Act is that other governments would assume authority over the lives and lands of First Nations without their consent and without the proper background and knowledge, and usurp the authority of First Nations. As a first recommendation, the federal government must amend the two Emergencies Act to include First Nation governments. This amendment process must be inclusive of all First Nations in Canada as to what role First Nations will play in emergencies, how they are involved in decision making, what information they are provided, ensure that their people, rights, lands, and resources are protected. Canada has now in place a law called the United Nations Declaration on the Rights of Indigenous People Act and it's now law and needs to take into consideration and make their laws consistent within their emergency law. And so this is something that has to take place because this is now legislated. And in particular, Article 30 of UNDRIP talks about: "Military activity shall not take place in the lands or territories of Indigenous people unless justified by relevant public interest or otherwise freely agreed with or requested by the Indigenous people concerned, and state shall undertake effective consultations with the Indigenous people concerned through appropriate procedures, and in particular, through their representative institutions prior to using their lands, territories, for military activities." So if by any chance in emergency the military is called in, we have to define what does that procedure look like? What say do First Nations have in that? While Oka was not considered an emergency, no one will forget the tanks rolling onto the Mohawk lands, called in to stop the First Nations people from defending their lands. UNDRIP and the changes that need to be made to federal law and policy to reflect these commitments must be done and it must be consistent with all the articles in UNDRIP. There is a duty on the federal government to report to and engage First Nations. First Nations need to be able to help define what an emergency is, and not just the decision of the federal government. We must be able to determine what is critical infrastructure and services. Often, remote or small communities are not considered critical infrastructure because it only affects a small number of people or a smaller community that’s critical to them. During the big fires in British Columbia a couple of years ago, I was meeting with a minister, and I got a call from one of our First Nations and the fire was just coming down the hills quickly to their community. I had to plead with the minister to send in helicopters and to consider that critical infrastructure, but that wasn’t what they had thought. But thankfully, they did send in the helicopters to stop the fire. These are the kind of critical situations that we need to talk about. Or during the flooding in British Columbia where gas wasn’t being brought into the province due to all of the transportation corridors being shut down. We were all limited to 30 litres per car. Had to negotiate with the government to increase that for our remote communities because you can't get very far in communities on 30 litres. You can't get in to get your food and necessary supplies on that. So it's very critical that there is an amendment to the Emergencies Act and Emergency Management Act so we can clearly lay out what is needed in First Nations communities. Thank you.
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Judith Sayers, President (Nuu-chah-nulth Tribal Council)
Thank you. Yes, I would. Judith Sayers here. One of the government-to-government memorandums of understanding that we reached was during the COVID crisis. And as governments, we weren't able to make decisions because critical data was being kept from us. We didn't know how many COVID cases were in surrounding communities. We didn't know if it was okay to tell our members to go into those communities because we had no idea of how many COVID cases. So we went to the provincial government and we said, "Hey, we really need to know this." It took us seven months to negotiate that, which, you know, COVID was still relevant. So it's important that these kind of protocols be entered into prior to, but in order to make decisions during emergencies, First Nations need to have access to information. And I know that there's confidentiality and we did deal with confidentiality in our agreement, but it was important to do that. It's also important in this data to ensure that we have specific data for First Nations on reserve, off reserve if we possibly can have that information, and so any kind of information happening during an emergency makes it important to First Nations, so they know where the fire's coming from. Of course, flooding happens pretty quickly, but just knowing the information that is required, so we can manage emergencies, we can manage what is happening, our responses. Another example would be when Canada closed its borders to the U.S. No doubt, it needed to be done. I'm not questioning that. But by doing so, it also separated our communities that are on both the Canadian and American side. And had we been able to have conversations with Canada, we might have been able to put in some provisions to allow that kind of cross-border activity. Maybe not, I mean, but I think it should have been talked about. And then Canada opened its borders again and let people come in, and in the waterways in particular, some of our communities are remote, on islands and pleasure crafts were coming in and, of course, trying to enter the communities. And, you know, we're trying to exercise jurisdiction and asking people to stay out and on the waterways it was difficult. So you know -- and that's Transportation Canada, kind of people that we're working with. So I think if we can look forward into the future to see what it is that we need, what are the kind of conversations that we need to have in order for us all to respond to emergencies, what roles can we play. And I think the government-to-government coordination needs to be defined. It needs to be put into the Emergency Act. You know, how much time does First Nations have to respond to emergencies. Provinces get seven days. Should be the same for First Nations. I think that in order for us to be able to do things properly, we need to be coordinated with, for example, bring in the military to help with forest fires. It's become a common issue in British Columbia. And we should, and I think Ryan talked about this, we need to have that communication, that coordination. We're all working for a common cause, respecting each other's jurisdiction and abilities to do that. I think a financial aid is also something that can be negotiated, what happens after a national disaster, how do we rebuild and replace what was destroyed or damaged. One of our communities that was in a fire that was destroyed still hasn't been rebuilt. One of the other tools that we have is reconciliation and the calls to action. There is a Bill C29 before Parliament right now to put in place a body to deal with reconciliation. And having these kind of understandings, dialogues, agreements with federal government is all part of reconciliation. Reconciliation is about making things in the past right, and having been kept out of emergencies, not having a good role, needs to be set right. We need to have those conversations. It’s a lot of work. It’s a lot of work that’s ahead of us, yes. I definitely agree to that, but it’s something that has to be done. And I also think the federal government needs to encourage and support protocols between First Nations and the RCMP in time of emergency. How do we work better together? What is the understanding? And I realize this wasn’t an emergency but, you know, we all watched in British Columbia, Northern British Columbia, with the Wet’suwet’en, the RCMP just went in and took down all of the land defenders’ camps, and it wasn’t -- it wasn’t done properly. Can we not find better ways to work together so that we can avoid those kinds of situations? And, you know, that’s just one example of, you know, what people might call a protest, other people are calling them land defenders. But, you know, these are the hard, hard conversations we need to have. Yes, emergency are federal jurisdiction, but yes, First Nations have rights, and First Nations need to be able to manage to those emergencies in our lands, and we need to have capacity built. How do we fight fires? How do we fight things on the water if we don’t have the proper resources to do that. And so those are -- capacity building is a huge area that we need to enter into protocols with. So I thank you for your time.
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Judith Sayers, President (Nuu-chah-nulth Tribal Council)
Yes, for sure. So you know, the consultation pre UNDRIP, you know, is a bit different than what it is under UNDRIP because, you know, in some cases, you need consultation and collaboration leading to the free, prior and informed consent of Indigenous peoples, and there are certain specific areas within UNDRIP which that is required, such as the legislation. So if the Emergency Act is being amended it should be with leading to the consent of Indigenous people. In British Columbia, the Emergency Act is now being amended, and should be, and is working with First Nations. I know the question is often asked, how do we consult with 633 plus First Nations across Canada? And that’s a good question. But oftentimes, if you work with Indigenous people, some may want to do it on their own, some may want to do it regionally or provincially. But I think what’s really important here to remember is that the rights holders are the ones that have the say and that the federal organizations can be talked to, but in the end, it should be the rights holders that make final decision about what that should be. There needs -- sit down and work out a process with First Nations on how consultation should take place under the Emergency Act. Another tool the Federal Government has, of course, is in their Universal Declaration on the Rights of Indigenous Peoples Act, they have to put together an action plan. So over five years, they can define what needs to be done in that action plan, and then go about and do it. And right now, they’re collecting from First Nations what it is that we need to do. So it really is important to sit down now and to start talking about what’s happening. But if an emergency is happening on specific First Nation’s lands, they should be the ones that are talked to. If it’s one, or 10, or whatever, they should be talked to first. If it’s a national emergency, of course everybody has to be included. So just remembering that the duty to consult goes beyond consultation. And just working out these protocols with First Nations is, I think, one of the best kinds of things that you can do. And in particular, what is important that I haven’t mentioned yet, is that First Nations know their lands, their resources, and they have the best knowledge of the land. So if we’re talking about fires, if we’re talking about flooding, they’re the ones that know their lands the best. And that sort of knowledge is invaluable in some of these emergencies that we talk to, and that also could be part of those protocols that could be used. So I think the opportunity, you know, in this new era of UNDRIP and reconciliation is it’s time to do dialogue, you know, and take advantage of First Nations willingness, as well, to sit down and do this and not to be excluded, because I think those kinds of days are over and it’s time to open up and to figure out how we can work together in all kinds of emergencies. Thank you.
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Judith Sayers, President (Nuu-chah-nulth Tribal Council)
Yes. I just wanted to -- I don't know that timelines and legislation is the best thing. But the urgency of emergencies, especially in health, the pandemic's not over and we know that there’ll be more coming; the changing in the weather due to climate change; the flooding; the tsunamis; the -- there's just so much happening in this world, and I think that we need to act sooner than later in putting in place protocols and working together, roles, responsibilities. Let's be clear that so we're not fooling around at some time and trying to decide if it's a provincial jurisdiction or federal jurisdiction or a First Nation jurisdiction. We just need to -- I would just like to see us be really clear and doing things very quickly so that we can address things that are going to affect our people, our rights, our lands. And I just wanted to add that to the conversation. Thank you.
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Judith Sayers, President (Nuu-chah-nulth Tribal Council)
Yeah, I would think that, you know, in the case of the COVID sharing information, the province pleaded the Freedom of Information Act. And, you know, we kept on asking, well, at what point does the national emergency or some -- you know, the collective rights of individuals, the collective people have rights over the individual person. And I just didn't see how saying that there were 10 COVID cases that we would actually say the 10 individuals. We wouldn't even know who they were. So I think sometimes there is far too much caution put into that, and maybe that needs to be defined in the Emergency Act when, you know, critical information needs to get to various jurisdictions, that that can be done as opposed to not being done. And I just feel that not only in health, but in some of the related issues that we've been having, and flooding, you know, incidents in the ocean, like, there are some things that just need to be known. I guess I'm not sure how we define that, but it's something that, you know, became a real -- and I think that's why it took us seven months to negotiate that was trying to get around those privacy -- and we actually brought a complaint to the Privacy Commissioner, and he just said he didn't any tools in the Freedom of Information. So we need to tools to be able to access the kind of information that we need during emergencies.
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Judith Sayers, President (Nuu-chah-nulth Tribal Council)
Yeah, I think that if there's enough time before an emergency -- you know, when things are building up and it looks like you might have to invoke the Emergency Act, then, yeah, there should be consultations, meaning -- beyond meaningful -- we've had bad luck with the government on what meaningful consultation means. But if there's no time, like, you know, some war -- you know, I mean, war is different, but if there's something that hit automatically, then I think that we do need that timeline to talk to people afterwards, you know, whether it's seven days, or three days, or whatever is reasonable, because I think -- I just think sometimes that you just won't be able to do the consultation, but I think that should be limited.
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Judith Sayers, President (Nuu-chah-nulth Tribal Council)
Yes. You know, in some of the fires in 2017 in B.C., First Nations were asked to leave their communities and homes, and they refused. And you know, like the military, well, who is trained to be doing this? And so I guess that's my question, is how can we better prepare in our communities for these emergencies because, as was stated, the military is not always the best option. And you know, if we're going to using the military in some situations I think that's another area that there could be protocols between governments, First Nations on how that happens, and that the, you know, within the lands of the First Nations, of course, they should be the people managing the emergency. So you know, I think we really do need to be looking at better ways of preparing ourselves for emergencies, capacity building equipment, et cetera, as opposed to, you know, maybe the military would be something, but maybe it would d be further down the line if we can actually find local help.