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Karen Restoule: These major projects show we’re making progress on reconciliation

Commentary

June 21 marks National Indigenous Peoples Day, a day that recognizes and celebrates the unique histories, diverse cultures, and contributions of First Nations, Inuit, and Metis peoples. It was introduced in 1996 and was established in response to a 1995 recommendation set out by the Royal Commission on Aboriginal Peoples.

While this holiday has helped to bring knowledge and awareness to Canadians about Indigenous histories and cultures, we must look beyond dated assumptions—especially on a day like today— and consider the tangible contributions of First Nations peoples in weaving together the strong foundational economic fabric of our country.

Canada is built on centuries of business and trade between Nations on these lands, whether it was between First Nations prior to contact or between First Nations and Europeans in the years following the contact period. This entrepreneurial focus has endured through time and managed to keep some form despite the 150-plus years of restriction brought by the implementation and rigorous enforcement of the Indian Act—the ultimate red tape.

Today, we are seeing the impacts of a dedicated focus on reconciliation extend beyond awareness of the darker shades of our shared history and toward recognition that First Nations are leading the country through major project development.

At a time when the regulatory framework seems to frustrate rather than encourage Canadian ambition, it should be unsurprising that First Nations are pushing through these and other challenges to advance key projects that benefit all, First Nations peoples and Canadians alike.

Consider the following precedent-setting examples:

Wataynikaneyap Power

Driven by two simple objectives—to provide reliable and accessible energy by connecting remote communities to the provincial grid and to work in partnership to explore transmission development and ownership—the vision of 24 First Nations came to light when it formed Wataynikaneyap Power LP in partnership with Fortis Inc. The Wataynikaneyap is a licensed transmission company equally owned by 24 First Nations (51 percent), in partnership with Fortis Inc. and other private investors (49 percent), with a schedule to have the First Nations become 100 percent owners over time. It has been identified as an unprecedented undertaking. It will develop, own, and operate just over 1,800 kilometres of 230kV, 115kV, and 44kV lines in northwestern Ontario. While the total cost of the projects is estimated at $1.9 billion, this project is expected to save $1 billion and is estimated to create 769 jobs during construction and bring $900 million in social value.

Athabasca Indigenous Investments

Described as the largest energy-related Indigenous economic partnership transaction in North America (so far), Athabasca Indigenous Investments (Aii) is a pipeline project that includes an 11.57 percent Indigenous ownership in seven Enbridge pipelines worth $1.12 billion. The pipelines transport about 45 percent of Canada’s bitumen sands production, under contract, to key export hubs in Edmonton and Hardisty, Alberta. This Indigenous acquisition deal was made possible by loan guarantees from the Alberta Indigenous Opportunities Corporation (AIOC), which supports Indigenous investments with loan guarantees backed by Alberta.

Thebacha Limited Partnership

Considered to be a bit ahead of the curve, the Thebacha Limited Partnership saw the Mikisew Cree and Fort McKay First Nations joining forces to buy 49 percent of Suncor’s East Tank Farm development in 2017, resulting in the largest and most significant business transaction in Indigenous history up until last year. Handling production from Suncor’s Fort Hills oil sands mining project, the East Tank Farm provides bitumen storage, blending and cooling facilities, and connectivity to third-party pipelines. The two First Nations independently financed the acquisition. Other benefits noted by the Indigenous leaders include improved housing, culture, community infrastructure, youth and elder care, economic sustainability, and education and training for generations to come.

It is well established that the best outcomes flourish from strong partnerships. And these noted successes, and others, are no exception. First Nations are positioned to contribute to advancing a quality of life for their citizens, and subsequently for Canadians, because they once again have the wing span to do so. Industry is initiating conversations with potential First Nations partners long before the project has been started. Old school threats of running a bulldozer through lands have been parked in the past—and let’s hope they stay there. Industry’s focus on ensuring hiring and contracts prioritize First Nations peoples local to project sites ensures that those equity partnerships are being extended to ground-level where First Nations peoples and Canadians are working shoulder-to-shoulder. And, increasingly, we are seeing a number of First Nations initiating discussions with industry on partnership opportunities.

Of course, new heights can be achieved if everyone pitches in, especially the federal government. Here are some solutions that could help us get there: Creating avenues nationally for First Nations to access capital to buy parts of major projects, building on Alberta’s model at the Alberta Indigenous Opportunities Corporation, will ensure that historical financial barriers are removed; Amending existing legislation to address jurisdictional issues on reserves will open up opportunities for greater security and provide for lower risk financing options; Exercising what it purports to support, the self-determination of First Nations and their right to freely pursue their economic, social, and cultural development regardless if that aligns with the current government’s political ideology.

As we welcome another National Indigenous Peoples Day and turn our minds to Canada Day, I can’t help but think about how much more we will have to celebrate when all influential players are pitching in. First Nations have made it clear: we are ready to hit our contribution potential for the benefit of First Nations and for the benefit of this country. In fact, we are well on our way there— and if everyone did what they could within their own wheelhouse, we could all get there sooner rather than later.

Opinion: Here’s how the government could have kept Paul Bernardo in maximum security

Commentary

Over the past two weeks significant controversy has arisen over the transfer of inmate Paul Bernardo from Millhaven maximum-security institution to a medium security facility at La Macaza, QC. The government has insisted that, due to the independence of the correctional services, there was nothing it could do to reverse the transfer.

But, as we will show, the government had options that may have kept Bernardo in a maximum security facility.

In the early 1990s, Bernardo was convicted of multiple murders and a series of rapes. He was handed a life sentence as well as a dangerous offender designation.

Section 30 of the Corrections and Conditional Release Act mandates that the Correctional Service of Canada (CSC) assign a security classification of maximum, medium, or minimum to each inmate. That assignment is determined by CSC in accordance with the factors set out in s. 17 of the CCRA Regulations. Those factors are:

(a) the seriousness of the offence committed by the inmate;

(b) any outstanding charges against the inmate;

(c) the inmate’s performance and behaviour while under sentence;

(d) the inmate’s social, criminal and, if available, young-offender history and any dangerous offender designation under the Criminal Code;

(e) any physical or mental illness or disorder suffered by the inmate;

(f) the inmate’s potential for violent behaviour; and

(g) the inmate’s continued involvement in criminal activities.

The government confirms that in March 2023, the Public Safety Minister’s Office and the Prime Minister’s Office received from CSC notice of the intended change in Bernardo’s classification. Despite having received ample notice of the transfer, neither the minister’s office nor PMO appeared to request further information regarding the basis of the change and no action was taken in respect of the proposed re-classification.

It is clear from the CCRA and related regulations that the Minister of Public Safety does not have the authority to give direction regarding the classification of individual inmates or the administration of the sentence of that inmate. However, that does not mean the minister and government had no options in this case.

The first and easiest option was for the minister to direct CSC to review the matter at that time and be prepared to provide detailed reasons regarding its assessment of Bernardo’s security classification. The minister could have determined that the public interest exception to the Privacy Act [s. 8(2)(m)] applied and directed that the review and reasons be provided to the families of Bernardo’s victims and made more generally available. This process alone would have generated a significant amount of reflection within CSC.

Further critical steps were available to the minister and government: rapidly amend the CCRA regulations to establish a rank order of the factors to be considered by CSC in assigning security classification. The government could have added two factors immediately after seriousness of the offence committed by the inmate. These would have been:

(a1) whether the inmate has been designated by the Court as a dangerous offender; and

(a2) the risk to the security and safety of the inmate, other inmates, or the institution;

Item (d) (above) would be amended so that it referred only to the “inmate’s social, criminal and, if available, young offender history.”

Amending regulations need not be a complicated exercise. Amendments to regulations are approved by the governor-in-council. This is usually done by the Treasury Board sitting as a sub-committee of cabinet. In the normal course, an amendment is submitted to Treasury Board twenty-three days prior to its consideration. However, on an urgent basis, amendments have been approved by any three cabinet ministers in a “walk-around” approach.

The PMO and minister’s office received notice of Bernardo’s proposed transfer at least two months prior to it happening. They had ample time to amend the regulations to allow CSC to assess the transfer under an enhanced set of criteria.

By requiring CSC to explicitly consider the factors in order of precedence and also consider the dangerous offender designation as the second factor, the approach outlined above would have acknowledged and respected the Court’s finding of fact that Bernardo’s personal characteristics and circumstances made him a danger to society.