Thank you, Mr. Chair.
I think this is an issue that requires careful consideration as to the principles of cooperative federalism in Canada. It's important, and it's been ruled in many Supreme Court cases in the past, when it relates to first nations issues in particular. I can go back to the 2016 court decision in Daniels v. Canada, even before that, for the purpose of my discussion,
The 1939 Supreme Court reference case around the inclusion of “Eskimo in habitants of the Province of Quebec” makes it clear that when provincial entities, particularly the regulators of natural resources, come into conflict with federal jurisdiction, particularly in relation to their constitutional obligation to protect indigenous peoples under section 35, it is the honour of the Crown that is united both provincially and federally to the relations of first nations people.
It is well defined in common law in Canada, that when it relates to first nations issues, the honour of the Crown, which is indivisible....
We serve one Crown, both the provinces and the federal government. It is not that first nations people live under the provinces' jurisdiction; they don't even live under the federal government's jurisdiction. They live separate and distinct by way of treaty with the Crown.
This means that in instances where the Crown has acted dishonourably, in particular relating to the Athabaska Chipewyan First Nation's assertion that the Alberta government has breached its legal fiduciary and consultative duties to these leaks, it also would seek the protection of the federal government, with which it signed a treaty, for the very same.
We have to be cognizant that in relation to first nations issues, the Crown is indivisible, meaning you can't rule something out of order or out of jurisdiction because it's a provincial entity in direct relation to first nations issues. It is a commitment to all of us, all people, that we ensure that the treaty obligations of these nations are upheld.
That includes and is not limited to the Province of Alberta and the Alberta Energy Regulator. I see no problem enacting my duty as a member of Parliament to protect the constitutional rights of first nations peoples in Alberta under section 35 of our Constitution, which binds both the provinces and the federal government to the protective orders and protective status of the lands on which first nations people live and, most particularly, the waters that they drink.
Therefore, it is not out of order, in my perspective, that the Alberta Energy Regulator be held to account by the federal government as a measure of protection for first nations people and as a protection of their constitutional rights under section 35.
The alternative, or the suggestion of the alternative, would mean that first nations should not be able to find or hold accountable the AER, especially if it is directly impacting their rights, which I fundamentally disagree with. I fundamentally assert that this has been dealt with in case law many times before. As a matter of fact, the AER very often has to respond to federal jurisdiction and federal legislation. We saw that with the recent CEPA legislation, for example. The AER had to change its own regulations because of it.
These things don't exist in a vacuum. It's important that Alberta be held accountable for its breaches of aboriginal rights, and it's up to us, as federal parliamentarians, to uphold our obligations under subsection 91(24) of the 1982 Constitution Act, which is to ensure that indigenous—or in the words of the constitution, “Indians, and Lands reserved for the Indians”—are hereby protected.
It's well within our scope as a federal legislature to ensure that the honour of the Crown is upheld. Even if they're provincial institutions, it is still our constitutional obligation under section 35 to protect these rights and to ensure that those persons who would breach those rights are held to full account.
Therefore, I disagree with your ruling, Mr. Chair, and I would suggest that you revisit this with a common understanding of the law in relation to first nations issues, and have the law clerk maybe review that judgment in relation to that.