Transcript
Transcript: Contemporary Issues in Canadian Federalism Series: Emergency Preparedness in a Diverse Federation
[00:00:01 The CSPS logo appears onscreen.]
[00:00:06 The screen fades to Maîtres François Daigle standing at a podium.]
Maîtres François Daigle: Hello everyone. Welcome. My name is François Daigle, and I'm the Former Deputy Minister of Justice and Deputy Attorney General of Canada. I'm happy to be the moderator for the Canada School of Public Service today to moderate this event. It's the 11th event in this series on federalism. Let me start by acknowledging that the land that I'm speaking to today from, Chelsea, Quebec, which is on the traditional territory of the Anishinaabeg Algonquin Nation, whose presence here reaches back to time immemorial. I acknowledge and give thanks for the land on which we live and work and to the people who have cared for it. And some of you today will be joining us from various parts of the country, and I encourage you to take a moment to recognize and acknowledge the territory that you are occupying.
So, I'm pleased to introduce today's event, entitled, "Contemporary Issues in Canadian Federalism Series: Emergency and Preparedness in a Diverse Federation." Managing crises and emergency situations requires collaboration across federal, provincial, territorial jurisdictions to strengthen our emergency preparedness at the national level. This 11th event in the series will showcase some of the emergency preparedness measures that Canadians have experienced, and we will likely hear about some of the emergencies where those measures were relied upon. And given the issues that we'll discuss, it probably will be difficult not to speak about the events of February 22, 2022, which led to the federal government invoking the Federal Emergencies Act. Today's participants, we hope, will gain a better understanding of the federal government's roles and responsibilities and learn how to prepare for emergencies and respond to crises involving multiple levels of government. We'll soon be hearing from two fantastic speakers, both of whom served on Justice Paul Rouleau's Public Order Emergency Commission as members of the commission's research council.
So, let me introduce them to you. First, Nomi Claire Lazar is a professor in the Graduate School of Public and International Affairs at the University of Ottawa. She is the author of a wide range of scholarship on emergency powers and crisis government, including the books, "States of Emergency in Liberal Democracies" and "Out of Joint: Power, Crisis, and the Rhetoric of Time." Professor Lazar has taught at the University of Chicago, Yale and served as Associate Dean of Faculty at Yale and US College. In addition to her academic work, Professor Lazar is active in civil society, serving the public as a poll worker for federal elections or for elections, working on prisoners' rights issues and sitting on the University of Ottawa's governing board. Prior to her doctoral studies, she worked with Justice Canada on the policy framework around the Youth Criminal Justice Act.
Dr. Jocelyn Stacey is an Associate Professor at the Allard School of Law at UBC. She researches environmental crises and the visible and invisible ways in which law creates, regulates and prevents these events. Her work focuses on environmental, environment assessment law, disaster law, climate change, emergency powers and the rule of law. Her book, "The Constitution of the Environmental Emergency," addresses what the rule of law requires in light of our vulnerability to catastrophic environmental harm. She's also the co-author of two reports with the Tŝilhqot'in National Government, which document the experiences of the Nation during the 2017 wildfires and the COVID pandemic. Professor Stacey works with the B.C. First Nations Leadership Council on the modernization of emergency management legislation in British Columbia. So, thank you all for joining us today. I think we're going to start with a presentation from Professor Lazar. Nomi, over to you.
Nomi Claire Lazar: Thank you very much. And thanks so much for the invitation to participate in this discussion today. I do think it's a topic that is both fascinating, and incredibly and increasingly important. So, all aspects of federalism depend fundamentally on trust and cooperation across jurisdictions, and also horizontally across government departments, so across areas of policy responsibility. The architecture that supports trust and cooperation includes both formal structures like laws and institutions, but also informal structures like relationships and commitment to the rule of law as a sort of a collective project. So, as you've no doubt been hearing throughout this webinar series, and I'm sure have been living in your professional lives as well, maintaining this architecture of federalism can be challenging at the best of times. And the acute nature of emergencies means that we can sometimes in those moments see both the federation's weak points, but also its areas of especial resilience and strength. And anticipating and preparing for emergencies can help federations strengthen that architecture not only for acute moments of emergency, but through the periods of cooperation and preparation that connect them. Slide, please.
So, my aim in this short presentation is going to be to introduce the concept of a public emergency, and of states of emergency and emergency powers, and to briefly outline some of the challenges that they present for a cooperative federation. So, the first thing that it's important to note is that there is a distinction, which we sometimes elide in everyday language, between hazards and disasters, emergencies, as we refer to them colloquially, and public emergencies that might generate a legal state of emergency. So, a hazard is a known risk, we could say. So, earthquakes, for example, are a hazard on the west coast. But this is not the same as a disaster because if we are properly prepared, so for example, with the right architectural features, with the right public education, then even if there is an earthquake, in many cases, it might not result in a disaster, where a disaster is understood as causing a certain level of death and destruction. But even in the event that a hazard, an earthquake becomes a disaster, it does not necessarily become a public emergency or a situation that warrants a legal state of emergency. So, the defining feature, the definition of a public emergency that might warrant a state of emergency in the legal sense, is that there is a gap between state duties to the public and the capacity to meet those duties in the normal way.
So, if we think of a disaster where perhaps there's loss of life, perhaps a dozen people are killed and others are injured, as long as the state is still, the government is still able at the municipal and the provincial level, for example, to treat those people, to get them to the hospital, to look after them, as long as those capacities are there, there's no need for a state of emergency. And so, this is the defining feature, that the usual mechanisms that we use to respond to a situation of urgency or crisis aren't sufficient or aren't available to actually deal with the situation. And it's that state of necessity, we might say, that can trigger the use of legal emergency powers. Now, it used to be that we defined states of emergency, and this is still the case in some parts of international law, as a threat to the very existence of the state itself. So, for example, in Article 4 of the International Covenant on Civil and Political Rights, this aspect is part of the definition of an emergency.
And the reason that that threshold is so high is that states of emergency often allow for rights, derogations, or rights limitations that we would not accept at normal times. So, we used to conceptualize the threshold for an emergency as, really, very high. But perhaps morally appropriately, that threshold has got lower over time because in part being prepared to meet any hazard or any possible disaster at any time would be prohibitively expensive. So, it's also the case that we can't always anticipate what might happen and that also makes it difficult to prepare in advance. So, even where there are types of hazards or threats that repeat, right? So, we know there are going to be floods, we know there are going to be disease outbreaks. The tokens, like the sort of particular instance of these kinds of threats change over time. So, the new virus is different from the last virus. And so, preparing in the right way for every possible situation that could that could arise would draw so much away from public resources that that might have detrimental effects elsewhere.
And so, in part because of that, modern emergency legislation has, sometimes has lower thresholds than a risk to the existence of the state itself, and rather allows for a situation where the state may be able to draw in resources it would not necessarily be able to. So, for example, if we're going to touch on the convoy, the notion that the state was able to commandeer tow trucks to help resolve that situation, whereas if the state sort of maintained its own fleet of tow trucks, that could be prohibitive. So, sometimes emergency legislation allows for resources to be sort of moved around in a way that saves resources for other public priorities. So, this then creates a policy challenge, and the policy challenge is essentially how much investment to make in emergency preparedness, recognizing that that will reduce the gap that could generate the need for a state of emergency, and with its accompanying potential brakes, limitations, etc. And on the other hand, making sure that there are funds available that are, funds are sort of, we could say, optimized. Resource allocation is optimized for the public good and for other public priorities. So, that's one of the key areas of policy challenge where federalism can sometimes step in in creative ways to help address that. Slide, please.
So, emergency powers take a range of diverse forms across jurisdictions and around the world. So, often constitutions have measures for states of emergency. So, for example, in Article 9, I think it is, of the U.S. Constitution, there is the opportunity to suspend habeas corpus in the event, or under certain conditions such as insurrection. And sometimes, those constitutional provisions merely sort of are not formal but just imply that emergency measures could be taken, so for example, that our POGG powers under Section 91 could be understood that way. In modern constitutions, recent constitutions, we often find emergency powers either in a separate section specifically about emergency or else sometimes directly following the section in a constitution that outlines people's rights. So, in those cases, here are your rights and here are the circumstances in which they might be limited or derogated. So, and there are also constitutional conventions and common law powers that can contribute to justifying or establishing the limits of emergency powers, such as the prerogative power and police powers under the common law. So, but emergency powers in contemporary societies often go well beyond the constitutional. They involve specific aspects or specific legislation at multiple jurisdictional levels to deal with specific kinds of cases.
So, sometimes that comes in the form of acts like the Emergencies Act, and sometimes it comes in other legislation. So, for example, public health legislation. So, we have this sort of mess of overlapping kinds of legal frameworks for states of emergency, which are made sometimes even messier by the fact that some jurisdictions have a lot of ad hoc emergency legislation. So, for example, executive orders in the United States. It's not unusual for the President in the United States to use an executive order to declare a state of emergency specific to a particular situation. So, we have this whole diversity of forms of emergency power across jurisdictions, incorporating lots of different legislation, both constitutional and statutory. Now, the historical trend in Canada and abroad has been to make legislation, emergency legislation, that has increasing specificity, that has increasing levels of checks and balances, and as we'll discuss later, that trend has been or is sort of, Canada at the federal level has been at the forefront of that trend globally, but the provinces a little bit less. So, we will discuss a little bit more about that further on. Slide, please.
[00:14:32 An painting of Cincinnatus by Alexandre Cabanel is shown.]
Okay. So, it's worth pointing out why we have emergency law in the first place. And to understand this, it's good to note that every constitutional regime historically has had emergency powers, stemming right back to Rome and probably before Rome. And the reason for that is that a constitutional regime, or a republic, tends to divide power to have checks and balances that allow different parts of the government to mitigate excess, shall we say. And in addition, in these regimes, we often have citizens who hold rights as citizens. So, this can present barriers to rapid and effective action. So, on the one hand, you have the possibility that one branch of government might stop the other, or that you might need long periods of discussion, and that can be detrimental to acting quickly and decisively in an emergency. And on the other hand, there in those kinds of regimes, because citizens do have rights as citizens, there is this, it could present difficulties in terms of doing what needs to be done to get the job done. So, forms of emergency powers historically have aimed to sort of streamline the decision process in addition to giving constitutional means and justifications for how to limit or derogate rights in a crisis. So, the Romans had multiple mechanisms for doing this. We get our word, dictator, for example, from the Roman republican institution of the dictatorship, which allowed one branch of government to say, hey, we have a problem, and another branch of government to say, all right, we'll appoint someone, a dictator.
Here in this picture we have Cincinnatus, who is a country farmer but who is appointed twice as the dictator to fix a crisis in Rome. And famously, he's sort of held up as this model of civic virtue, because as soon as the situation was resolved, he put down his arms and his fasces, which were the symbol of dictatorship, and went back to his farm. So, he takes on this incredible focus power, he gets the job done, he goes home back to his civilian life. So, this is sort of the model of emergency powers historically. And it, but we can see that emergency powers are also dangerous because we also all know that Julius Caesar took on the title of dictator at the moment when the republic basically was turned into (inaudible). So, it's quite, so while we recognize that emergency powers are necessary, they're always also quite dangerous. But this, we can see the continuity. So, as soon as France, for example, becomes a republic, almost the first piece of legislation it makes is to manage a state of siege. There's also, in English common law history, the equivalent of the state of siege, which is martial law. So, when a situation is so dire as to actually close the courts, the military can take over the judicial function. So, in modern emergency powers, we have to contend with things that historically people did not have to contend with. And of course, we're glad of this. So, black-letter rights, so rights that are written down in black-letter law. And in some cases, this has led to an explosion of law and jurisprudence that attempts to constrain emergency powers just enough, but not so much that it hamstrings the government in managing a crisis that might arise. Slide, please.
So, we can see that, or we can sort of anticipate that, emergency is going to be a bit of a governance challenge, and there are several reasons for this. The first is that law is normally backward looking, but we apply the law to the future. So, we often make laws looking at what's just happened. And that was certainly the case with the Emergencies Act, which was designed very much with the abuses of the War Measures Act, in the October crisis in mind, but also with the abuses of the War Measures Act in the Second World War. So, many of the interveners in the design of that law were people who had been personally affected by those recent incidents. So, we look backward when we're making law, but we want to apply the law to the future. And this, and especially given that emergencies are somewhat unpredictable, this can, this is a big governance challenge. In addition, so even when we have these legal frameworks that often are sort of responding to the last crisis, not the next one, the fact that emergencies are urgent means that there's often not enough time to fully consider the measures that a government might want to take using the, using emergency legislation. To compound this governance challenge even further, it's often the case that, well, it's always the case when we're making policy that there's not enough information, there's never enough information to know that we're doing the right thing absolutely and for sure. But the novelty of emergencies often means an especial paucity of facts, so the government might have to act before the situation is really clear. So again, we saw this with COVID and the initial confusion around whether to require masks or not, how the virus moves, etc. So, we just often don't have the information we need to make good choices about measures in in the moment. So, and constraints of time mean that some of the checks that we would normally have on policymaking, so fulsome discussion in parliament and among policymakers are curtailed, and also time for consultation across jurisdictions. So, these are some of the big, big governance challenges that face government in a situation of emergency. And this then raises the question of how we address them. Slide, please.
So, how do we bridge divisions in a situation of emergency? So, emergency powers are about unity across divides. So, the reason we have them is to bring unity across the checks and balances in different branches of government. And so, we have division of powers across branches of government, we have divisions of government across the jurisdictions, which have to be bridged, and then we also have the necessity of bridging power differentials that are created by the occasional need for secrecy when we act under emergency conditions. So, in our emergency legislative regimes, we do have certain mechanisms that are designed to engage in this bridging under these difficult governance conditions. So, for example, one of the features of the Emergencies Act that makes it, that makes it a relatively good piece of legislation is that it, so it doesn't just concentrate all of the power at the executive and then leave the other branches of government out, but rather it flips the temporality of decision-making, and execution and lawmaking, or the role, or sort of the temporal sequence of the role of the legislature and the executive, is the right way to put that. So, normally the legislature debates, and considers and makes and makes laws which are then executed.
So, in the case of the Emergencies Act, the executive takes action, but almost immediately afterward invites the legislature in to consider what has been done, and the legislature has the capacity to shut an emergency down. So, this is an example of bridging these difficulties, these challenges with emergency governance. Another, with respect to the secrecy, so how do we bridge power differentials created by the occasional need for secrecy? We find in the provision of the Emergencies Act that sets up the Parliamentary review committee, the joint committee that involves members of all parties represented in Parliament. That involves the Senate and the House as well. And this is designed in part to allow for examination of secret material or secret reasoning behind measures that might be taken in an emergency. Bridging divisions of powers across jurisdiction is trickier. So, now getting back to this federalism question. So, we do have a requirement for consultation in the act. How that plays out is a difficult question that we'll be discussing further through the course of this webinar. So, in Canada, we tend to focus on collaboration and consultation. But other jurisdictions have taken a sort of a more, federal jurisdictions have taken a more precautionary approach, anticipating that sometimes in a crisis people just can't agree and government might need to move forward in any case. Slide, please.
Okay. So, it's worth noting that other large federal jurisdictions, like Germany and India, have provisions specifically for dealing with the question of conflict between jurisdictions. So, in Germany for example, emergency management is under state jurisdiction. But Article 35 of the German Basic Law allows the federal government to deploy federal and state personnel, including police, to assist in disaster management. And Article 91 envisioned specifically a threat to democracy in a jurisdiction, so a situation in which one of the German Länder, or states, perhaps is taken over by an anti-democratic party. So, it anticipates threats to the system of government and enables cross-jurisdictional aid in that situation, including allowing the federal government, where a state is, and that language is not willing or able to combat the danger, to take control of any German police force or deploy it in a state. Now, that presumably comes out of German history, but it's interesting that most federal jurisdictions like that do have provisions along those lines. Of course, those provisions could be subject to abuse.
So, in India for example, Article 355 of the Constitution makes it a duty for the Central Government to protect states against internal disturbance, including a threat to democracy. And then Article 356 allows the President to govern a rogue state by direct decree. So, the President can just take control of the government of a state. Now, that provision was used 90 times, notably 39 times by Indira Gandhi between the time that India gained its independence and the landmark 1994 Indian Supreme Court case, Bommai versus Union of India. And that, the decision in that case did constrain the use of this provision for political purposes. But it is still used, notably in a recent case in Jammu and Kashmir, together with a special act that India has which allows India to deploy special troops, to deploy the army to enforce presidential decrees in a state. So, evidently, these kinds of powers, while they do anticipate certain risks that Canada has politely not anticipated, come along with enormous risk. But it is interesting that Canada, as a federation, does not even contemplate these kinds of situations. Slide, please.
So, governments in a constitutional democracy have a moral duty, we might say, to prevent and mitigate emergencies, and to rapidly restore government capacity to cure their citizens and to protect their rights. But dealing effectively with a public emergency can conflict with other moral imperatives. So, getting the job done, but getting it done in a way that respects rights is a tricky balance. So, under a state of emergency, property can be commandeered, assembly can be prohibited, speech can be limited, due process could be constricted. All of these are more or less standard elements of emergency power across the world. Furthermore, power may concentrate in fewer or different hands, and decisions may undergo less scrutiny, at least at the outset, and lower-level functionaries may acquire tremendous discretion over lives and property, sometimes with little time for appeal and with protection against indemnity, or sorry, and with indemnity. So, cooperative federalism has a role to play in effectively confronting emergencies while securing people and also their rights, but its success depends fundamentally on inter-governmental trust. And that, in turn, depends on building the architecture to support those relationships and that trust, including cooperation within government, across departments and across jurisdictions.
So, we're going to be throughout this webinar discussing a variety of ways that Canadian government does this and could do this better. But whatever we do and whatever incentives or laws we create, whether a federation can thrive and remain resilient through an emergency will depend on our collective commitment both to the federation and also to what David Dyzenhaus has called the Rule of Law Project. So, we have to all want it to work. We have to all be all in in order to navigate these extremely treacherous waters that we find ourselves in with states of emergency and emergency powers. And on that note, I will turn it over to my colleague, Professor Stacy.
Maîtres François Daigle: Thank you, Nomi. So, Jocelyn, over to you.
Jocelyn Stacey: Thanks very much, François, and thanks very much for the opportunity to speak with both of you today about these really important issues. I'm joining you from the traditional ancestral unceded territory of the Musqueam people in Vancouver, and I'm very grateful to Musqueam for governance and stewardship of this land since time immemorial, while also recognizing that I am an uninvited guest on this territory. So, I'm going to pick up where Nomi left off here and talk a bit about the constitutional architecture in Canada and what that looks like in relation to emergencies and emergency management. So, we can flip to the first slide. Thanks.
And so, I guess my one key point, that if you remember only one thing from this presentation, I hope you take away, and that is the idea that emergency preparedness is everyone's responsibility. So, this is a bit of a truism in emergency management. It's often put out there by governments to citizens, to communities, right, to take on sort of a role of individual preparedness. But this is true for governments in a settler federation as well. And so, what I want to do over the next 10 minutes or so is just give you a bit of a primer on how or why is this true, that emergency preparedness is everyone's responsibility here in Canada. So, you can go to the next slide.
So, in order to understand why every level of government has a responsibility in relation to emergency preparedness, I'm going to pick up on some of the things that Nomi has talked about to give you a sense of what constitutes an emergency or what the focus of emergency management is in practice. So, as Nomi mentioned, the concept of emergency or public emergency is typically associated with a specific tool of governance. That's the state of emergency, right? That's what unlocks sort of the potential to use these special or exceptional measures for dealing with a particular set of urgent circumstances. And you can see on this slide that we have quite a bit of experience in Canada, recent experience in Canada, at the provincial, territorial and federal level with that type of tool, states of emergency. And so, you can see extreme weather, right, with COVID, the public order emergency. And in addition to this sort of high-level overview at the provincial, territorial and federal level, there are hundreds of states of local emergency issued by municipalities across the country every year. So, that is a key feature in Canada of how emergencies are governed at every level of government, is the state of emergency. But in practice, emergency management and emergency governance is so much more than those specific events. And what I want you to take away from this is that emergency management touches on virtually every sphere of government operations. So, there's a few concepts that highlight this.
One of those is this idea of an all-hazards approach. Every government in Canada takes what's called an all-hazards approach to emergency management. This means that preparedness activities address a wide range of potential threats, or hazards or events. So, earthquakes, cyberattack, nuclear meltdown, mass casualty, any sort of circumstance that could lead to the need to invoke a state of emergency is captured in an all-hazards approach. Trying not to put things in silos of natural disaster versus national security, right, looking at all possibilities. And so, giving, even if you just start brainstorming in your head, right, the list of possible circumstances that could lead to an emergency, you can start to see why this touches on all spheres of government activity and why emergency preparedness is everyone's responsibility. But we can take it one step further than just listing these hazards, events and threats, because international standards now do more than that. International standards focus on what's called disaster risk reduction. That's set out in the Sendai Framework on Disaster Risk Reduction, which is an international framework that Canada has signed on to. And I'll just highlight three ways in which this idea, this concept of disaster risk reduction shifts our perspective on emergencies, or shifts our perspective on disasters and the sort of the governance activities that surround those types of events.
One really important shift is away from preparation towards prevention, right? So, rather than focusing on just preparing for inevitably having to invoke a state of emergency, it's recognizing that level of preparation is important, but it's insufficient. Instead, government responsibility needs to be directed to reducing disaster risk and generating resilience, right, so that it never comes to having to declare an emergency and rely on those exceptional responses. A second important shift is from thinking about hazards as, or threats or these events, as external things that happen to us, right? They come from the outside and they happen to us. But instead focusing on what about society makes us vulnerable or resilient to certain kinds of events. Because, as what Nomi has pointed out with this idea of a public emergency, what creates that type of emergency or what creates the disaster, the harm, the extreme harm that can fall out from that, is when society's capacity is overwhelmed. So, it's focusing on what are those features of society that lead to that overwhelm. And that's important because those threats and hazards that I gave you some examples of, they don't necessarily stay in their own lanes, right? Different hazards can combine to create cascading or compounding emergencies. And then the third shift that happens under a framework of disaster risk reduction that I want to draw your attention to is a shift from a centralized emergency response, where we have got one entity that comes in and takes over, to a whole-of-government or a whole-of-society approach, or what is sometimes called a horizontal approach, right? How do we enlist all actors in the activities of disaster risk reduction?
There's an Australian emergency management expert out there who talks about, in the context of disaster risk reduction, he's got, I think, a really great line. He says, "Emergency management is the job of coping with problems created by other policy sectors." So that, and so that gets to that, sort of that overwhelm, right? Society's inability to respond to a certain kind of trigger. And so, disaster risk reduction tries to address that head-on, right, by getting those other policy sectors to take steps to mitigate the risks that they create. So, disaster risk reduction is also about reducing those risk by addressing those underlying drivers of disaster risk. So, that can be climate change, policy, rapid urbanization or development, right? A whole host of things. So, when we start to think about emergency governance as, in a practical sense, using these concepts that are already used in Canada, right, and at the international level, all-hazards approach, disaster risk reduction, we can see that we've got this real network of responsibilities across types of hazards, across scales, across types of social issues that generate vulnerabilities, and at different periods of time. Preparation, right, response, that exceptional response, and then thinking about how do we recover from events and prevent the next ones. So, hopefully now, I'm really belabouring the point that emergency preparedness is everyone's responsibility.
We're going to do a bit of constitutional law 101, which is on the next slide, because now I want to talk about how those features of emergency government relate to Canadian federalism, because Canadian federalism has a big impact on emergency governance in Canada. So, just in terms of some of the basics and some of the sort of constitutional law parameters, I'll touch on the division of powers. So, the Constitution Act 1867 divides up heads of power between Federal Parliament and the provinces. Some of these heads of power that are listed in Sections 91 and 92 of the Constitution Act are directly and obviously relevant to emergencies. So, the federal government has responsibility for the military, for the navy, for defence, as we're all now acutely aware, federal responsibility for quarantine powers, right, which sort of sat in the background for a while. But we're more attuned to that now with the COVID pandemic. And the federal, and Parliament has a residual power in what's called the Peace, Order and Good Government clause in Section 91. The courts have found that that Peace, Order and Good Government clause contains an emergency branch, which means that Parliament can validly enact legislation that normally would fall within provincial jurisdiction on certain conditions. One of those conditions is that there is a rational basis for a national emergency, and the second is that the legislation or that federal action is temporary. So, it allows for a temporary intrusion of federal jurisdiction into the provincial sphere. So, in 1976, the Supreme Court of Canada upheld federal anti-inflation legislation under the emergency branch of POGG, the Peace, Order and Good Government clause. But since then, no challenge legislation has been defended by the government or upheld on the basis of the emergency branch, to my knowledge.
So, that's the federal government. So, then some specific powers that are listed and then this sort of residual possibility of using the emergency branch on a temporary basis. As Nomi mentioned earlier, within our constitutional framework, emergency management activities in many ways fall to the provinces. So, under our division of powers, the provinces have jurisdiction over property and civil rights - most public land in Canada, as I'm sure you know, is provincial crown land - along with other resources. So, if we're thinking about particular events like wildfires, forests are a provincial responsibility. And so, a major role for the provinces in emergency management in those spheres. Municipalities are also within provincial jurisdiction, and then what's called all-matters, generally, of a local nature. So, primary responsibility in many ways falling with the provinces. But as with many complex social issues like health care or environmental regulation, with emergencies we see overlapping federal and provincial legislation, regulation and policy. So, there's space for both the provinces and the federal government to validly govern simultaneously. And so, they have done this in part through enacting central emergency legislation. So, each federal, provincial and territorial government in Canada has a central emergency statute, often called something like the Emergency Management Act, that sets out some basic requirements for that level of government to prepare and plan for emergencies, sets out the procedure for declaring a state of emergency and issuing emergency measures.
At the federal level, the way the central legislation looks is a little bit different. There are two statutes. It's divided between two statutes. One is the Emergencies Act and the other is the Emergency Management Act, whereas the Emergencies Act deals only with response, that response stage of emergency and the special measures that could be used, the Emergency Management Act deals with those more programmatic aspects of emergency management. If you see on the right-hand side of the slide there, that's a depiction of what's often called the emergency management cycle. So, trying to understand that governance activities don't, aren't sort of limited to one period of time, responding to a crisis. In fact, we're always, or ought to be at some stage of emergency management so there's prevention, right? Preventing those risks from arising, being prepared for an emergency, responding to an extreme event and then recovering from it. And one of the ways in which Canadian legislation lags behind what international standards and best practices tell us is that most of our statutes don't actually deal with the full cycle of emergency activities. And in particular, recovery and prevention are not, don't have sort of robust sort of statutory framework that underpin those.
So, if we're thinking about emergencies in practice, right, going back to that standard of disaster risk reduction, our emergency management legislation might, at both the federal, and provincial and territorial level, might deal with parts of those activities, but we also should keep in mind that there's other legislation, again, at all levels of government that will deal with other aspects of disaster risk reduction. So, national security laws, right, we can think of as emergency laws because they allow for the gathering of intelligence that's important for prevention and preparedness for security threats. Building codes are emergency laws because they create or ameliorate vulnerability to disasters such as earthquakes or… zoning and planning laws as a type of emergency law, because they set out the processes and powers for approving recovery activities after an extreme event. So, emergency law is everywhere. So, what kinds of challenges does this present within a federal system? So, if you go to the next slide.
We might think if emergency law is everywhere, and if all levels of government have a role to play, that's great. More hands on deck, more opportunities for collaboration and cooperation, which is a possibility, but unfortunately is not always the case in which, in terms of how things play out. And so, we have experienced a number of challenges around emergencies that arise from Canadian federalism. I think actually on this slide here, I'm going to move from bottom to top if you're following the points on the PowerPoint slide. So, one of the sort of architectural issues, to use Nomi's language, of our constitutional architecture, is that emergency management in Canada is sort of guided by this assumption of a tiered jurisdiction in which higher levels of government are called in when the capacity of a lower level of government is exceeded. And I'm using higher and lower in terms of geographic scale as opposed to seniority or some other value that could be implied by that. And so, what that means is that municipalities are sort of first and foremost responsible for emergencies. They're the on the ground, frontlines, local governments. And when that local capacity is exceeded, then municipalities can call on the province or territory to step in and help out. That makes sense from a constitutional perspective, as I've just outlined, right? Municipalities are the constitutional responsibility of the provinces. And then if the capacity of the province or territory is exceeded, then the federal government can be called on to assist. Again, makes sense within that constitutional architecture, especially thinking about that federal residual responsibility for Peace, Order and Good Government.
But this sort of assumption of tiered responsibilities has a whole host of problems, one of which is that it assumes that there's a linear progression of an emergency or an extreme event, or an event is going to start small and then it's going to grow over some period of time that allows for a ratcheting up in terms of the level of response. And that is not always the case. The second is that it places municipalities who are at the frontlines of emergencies at sort of the bottom of a chain of command, meaning that they're reliant on provincial and territorial governments to advance their interests in multilateral discussions, and in particular with the federal government. So, that can also create some challenges. It invites jurisdictional squabbling over this threshold question of when capacity is, when exactly is capacity exceeded, right? So, you can sort of, we can think of examples of that about whether another level of government feels that it's appropriate to step in or not. So, it sort of gets us to focus on that particular threshold question. And the final challenge that I can see is that it is entirely reactive. So, it is focusing solely on the response stage of emergency management.
So, all of these challenges we're seeing play out through the impacts of climate change already. More extreme events or response capacity is exceeded very quickly and regularly. So, in the news over the past year or so, I've noticed that current and past leadership of the Canadian Armed Forces in particular has been sort of questioning the frequency within, with which the provinces and territories have been calling on the CAF to assist with disasters. So, we're seeing these dynamics play out, and I think is really showing us the limitations of this kind of tiered approach that is based on this constitutional architecture. I think it's possible, just to maybe foreshadow where we might go with our conversation, to imagine a different kind of federalism conversation, one in which all levels of government assess their respective capabilities and respective strengths, and to figure out how to bring those to bear on all of the different stages of emergency management. And so, just to take the last point on the slide, if we think about and understand emergencies as really sort of a quintessential policy problem that requires coordination, requires that power bridging that Nomi talked about, requires cooperation, one of the challenges with our constitutional architecture is that there's nothing in our constitutional order that actually requires provincial, territorial, federal governments to actually cooperate.
So, we have a concept of cooperative federalism that has been developed by the Supreme Court, which sounds really promising, and maybe it is really promising, maybe there's more there. But currently, the current understanding in our jurisprudence of cooperative federalism is as a sort of metaphor or an interpretive tool for interpreting the constitution in a way that allows for overlapping powers between provincial and federal levels, right? So, provinces can and parliament can both legislate with respect to emergencies, or water or environmental assessment. But it's not a constitutional requirement to work together, right, to cooperate. It just is sort of signaling that multiple levels of government can be in the same policy space at the same time. Okay. So, my final slide, please. Thanks.
Okay, so my last point here is that any conversation about inter-jurisdictional governance in Canada must include Indigenous jurisdiction. And so, Indigenous jurisdiction sits alongside Canadian federalism as we're all sort of grappling with how to take up the work of the Truth and Reconciliation Commission's calls to action, right, and we figure out how to implement the U.N. Declaration on the Rights of Indigenous Peoples. There's a lot that I could talk about here, but I just want to make two basic and important points. One of those is that Indigenous peoples have their own laws and their own practices for addressing threats and types of circumstances that Canadian law deems to be emergencies, and Indigenous governing bodies exercised their inherent jurisdiction when they implement those laws and practices in relation to emergencies. And that jurisdiction, and that inherent jurisdiction, is reflected in the U.N. declaration, in the concept of the right to self-determination. The second point is that Canadian federalism often operates to entangle Indigenous peoples in jurisdictional barriers that prevent them from implementing their own laws. So, I'll just give you a brief example of those two points. So, in 2017, first of several years in a row where we experienced catastrophic record-breaking wildfires out here in B.C., and these 2017 wildfires went through the territory of the Tŝilhqot'in. And the province was issuing ever-expanding provincial evacuation orders in, that went through Williams Lake and other areas in the interior of British Columbia and through Tŝilhqot'in territory.
And what happened was the RCMP showed up in one of the Tŝilhqot'in communities and ordered those that were there to evacuate. And the Chief said no, you don't have authority here. And the RCMP said you need to sign off on this evacuation order, and the Chief refused. And the RCMP countered with threats of apprehending the kids in the community if they didn't comply, comply with the provincial law. And so, conflict in that case was avoided, but what the RCMP didn't contemplate in that circumstance, and what was experienced time and again over that wildfire response, was a set of assumptions on the part of first responders coming into the area that the Tŝilhqot'in didn't have laws, or measures or practices in place, which was not the case. So, that community had already implemented its emergency response, it had already removed vulnerable members from the community, and everybody who was left was going to stay and fight fire and protect their infrastructure. The second piece, that particular vulnerability that is created by Canadian federalism, just to give you one example of that, as experienced by the Tŝilhqot'in, I'm sure other First Nations and Indigenous communities as well, but specifically in reserve communities in most provinces, emergency management services are provided by the provinces, even though reserves are federal jurisdiction.
And that's because of negotiations that have happened between the federal government and the provinces, that the federal government will fund those services as long as the province provides them. So, those bilateral funding agreements were negotiated without Indigenous involvement or consent. It makes some sense that the practical level, right, the province is already there geographically, right, providing those emergency services. But in practice, what it means is that, often, Indigenous governments end up needing to go through a double authorization process. So, they have to deal with both the province and the federal government in order to support the emergency response that is guided by their own laws. So, one of the recommendations are calls that the Tŝilhqot'in had made after the 2017 wildfires, was extending Jordan's Principle, a principle that has been recognized and implemented in the context of vulnerable First Nations kids, right, that Jurisdictional squabbling needs to happen after the fact, that providing those support and medical services to the kids has to happen at the first point of contact. And there's a rationale for that applying in the emergency context as well.
So, I'll just leave with the point that this question of how we move forward with implementing the U.N. Declaration on the Rights of Indigenous Peoples, I think is one of the most important opportunities that we have right now for working through really important but challenging questions of collaboration and coordination. And that's especially so now that Canada has signaled its intention to implement the U.N. declaration through new federal legislation. So, thanks very much, and I'm looking forward to the discussion.
Maîtres François Daigle: Okay. Well, thank you both. It was very interesting. Lots of issues, lots of questions on people's minds. I think maybe I'll start by just following up on the last point on Indigenous jurisdiction. I don't know if you can speak to this, Jocelyn, but is there any work right now that's happening with Indigenous governments across the country to sort that out so that we're not stuck trying to apply Jordan's Principle in the middle of an emergency, but we're actually dealing with it from a prevention perspective? And I'm also kind of worried about, not every Indigenous community has the same capacity to have a process to, or can implement their own laws and customs, necessarily. Some of them rely on the provincial governments, some of them, their first call is going to be Indigenous Services Canada to say there's a fire, what do we do? So, I'm just trying to get a sense, if you know, where are we in the country in terms of trying to bridge Indigenous jurisdictions into our kind of emergency architecture?
Jocelyn Stacey: It's a great question. Thanks very much, François. So, my experience is mostly here in British Columbia, so I can give you some examples from out here. But at a broader level, I mean, my sense from having worked with the Tŝilhqot'in through the wildfires, and then through COVID, is that actually there were some positive developments through the pandemic. And so, there was a number of funding, pots of funding that were sort of made available by Indigenous Services Canada that were much more, sort of open-ended, right? Like here, we're going to fund you, you use these to deal with your priorities, right? And so, one of the challenges that has happened through these sort of bilateral agreements is that when the money gets funneled through an agreement through the province, the province wants to fit it, right, fit all of the sort of eligible expenses into the framework that it understands, right? And so, the province's priorities and ways of thinking about emergency response may not align with First Nations communities' priorities. So, I do think there were some positive lessons learned from the COVID experience in terms of making sure that the money is getting into the hands of the communities on the ground. And hopefully, that will continue.
I can talk a little bit about B.C.'s new legislation out here because one of the big challenges is absolutely the fact that Indigenous communities will have different capacities, will have different priorities or interests in taking on levels of, sort of like leadership, right, and responsibility with respect to, with respect to emergencies. Indigenous communities are at various stages of revitalizing their own laws and governance processes coming out of residential schools and a whole range of impacts of colonialism. And I'm glad that you raised this question first, because I do think it is important to point out that Indigenous communities are some of the most vulnerable communities to emergency events precisely because of the past and ongoing impacts of colonialism, right? So, it is a place in which we can really see sort of the social creation of those vulnerabilities as opposed to something just being an external event. And so, what's been important in the conversations that have happened out here in British Columbia is that there are different ways in which, or there are different mechanisms that are on the table, so to speak, that Indigenous governing bodies can opt in to, right, as they get to different stages or reflecting sort of their own priorities with respect to addressing emergencies. And so, some of them, some of those tools that are now exist in provincial legislation here deal with potentially very broad agreements that can be entered into between an Indigenous governing body and the province to exercise powers jointly, to engage in mitigation measures jointly.
So, power joint decision-making agreements or sort of shared agreements. There are other agreements that can be entered into that deal only with response and recovery of emergency that are about shaping how the province will exercise its authority in order to make space for the application of Indigenous laws and leadership, right? So, the province can, in principle, through these agreements, can agree in this area we will make sure that we are not sending in wildfire crews because this is a, this is a culturally significant site for you, that is, we recognize that, we're coordinating our response with you in recognition that there are laws and practices that govern this space. So, this is still all a work in progress. This is very, very early stages in B.C., but sort of think, so, but one of the responses has been to have sort of these different kinds of mechanisms that can be engaged based on what the priorities of Indigenous communities are. And then on the prevention and mitigation side of things, what I think is really important is making sure that Indigenous communities are at the table in those conversations, right? The U.N. declaration repeatedly, right, references the need for consultation and cooperation with Indigenous peoples on matters that affect their interests. And so, building that in, right, to prevention and mitigation activities and all of those kind of pre-emergency governance practices is really important.
Nomi Claire Lazar: If I could just… could I just jump in there just very quickly?
Maîtres François Daigle: Go ahead.
Nomi Claire Lazar: So, what Jocelyn has just said about a consultation as a pre-emergency practice, so I think sometimes people respond to this notion of consultation being required during the emergency and say, "Well, look, you know, it's an emergency. There's no time for that." But this notion that emergency is not just something, things are sort of normal and then something happens that we're in an extreme situation, it gets resolved and we go back to normal. That is not how emergencies work. So, as Jocelyn has been describing, emergency is sort of a constant thing that we're trying to prevent, that we're preparing for, that we maybe move into an acute situation, and then into kind of reflecting on what happened and recovery. So, once we understand emergency, sort of the temporality of emergency as continuous in that way, it's not a matter of consultation. So, it sort of takes the pressure off consultation during this acute moment of urgency because those conversations have already taken place, because those relationships have already been developed during these less acute phases of emergency, and that allows for decision-making at the point, at the acute point that is going to be, that is going to feel more consultative and more collaborative, etc.
Maîtres François Daigle: Maybe just to follow up on that, I guess we can keep talking a little bit about preparedness and prevention, but I'm wondering, and maybe you have some experience, some knowledge of this, I don't know, but do we necessarily need one model? Because we have talked about the architecture of emergency preparedness and response across the country, but even, I mean, involving municipalities and Indigenous governments, are we going to end up with having to manage, and I'm thinking about this as, obviously, from the federal government's perspective, but having to manage maybe 40 or 50 different kinds of models for response rather than one, or two or three. Does that become a challenge in itself, or is that something that is easily addressed?
Nomi Claire Lazar: I mean, I think in the conversations, and I'll turn it over to Jocelyn in a second, she may want to follow up on this, but in the conversations that we've been having, what we'd like to see is the opposite. So, we see all kinds of spaces in which things work pretty well, and those, some those spaces are more in the natural disaster type area, and where there are mechanisms in place, and then other areas, where there doesn't seem to be an awareness of the continuity. So, there doesn't seem to be this all-hazards approach. But I'm going to turn it over to Jocelyn because she has a, I think, a nice pithy way of describing it.
Jocelyn Stacey: Oh my gosh. Now I don't even know what that pithy way is. So, you'll have to, if I don't land on it, you'll have to step in and save me, Nomi. I mean, I guess, so I'm thinking about this from the perspective of subsidiarity, right, which is the principle that we want the government that is sort of closest and most responsible to the people, right, to deal with policy problems, that are sort of within the realm of being able to take care of those problems, right? And so, I think that is true in the emergency context. We really want to be thinking about how do we empower local communities, right, to reduce their disaster risk, to work with folks on the ground, to reduce those sources of social vulnerability. So, I can understand from a federal perspective why the idea of many models might seem unwieldy, but I do, I think that's where we want to be. Like, we sort of, we want to have like a sort of flourishing country of many different models. And that is supposed to be one of the strengths of federalism, right, is that we have these sort of local laboratories that can adapt to their local context, right? And then we can learn from each other, right, and sort of figure out how everyone can be more resilient to, in the face of climate change, or disasters or what have you. So, I do think that trying to find mechanisms for that learning, and sharing and that coordination are really quite important, because I do think at the end of the day, we want local communities to be empowered. There was nothing pithy in there, so go for it, Nomi.
Nomi Claire Lazar: Just to point out that, so as we're going through these experiments that it becomes, it becomes less unwieldy if we are finding these models of collaboration and communication that can be offered up in terms of how jurisdictions communicate with each other, etc. So, sorry, François, I think you were going to jump in?
Maîtres François Daigle: No, that's good. Thank you. It's a lot more positive than I than I thought. Good. So, maybe something a little closer to home. Commissioner Rouleau in his report called the federal response to the Freedom Convoy a failure of federalism. And maybe, for everybody that's watching, you probably know, but Commissioner Rouleau, Paul Rouleau from the Ontario court, basically said that the government was reasonable. It was a reasonable approach for the government to take to declare a national emergency after hearing from a number of witnesses in 2023. And just last week, we had the Federal Court issued a decision in, brought by four, four parties that were involved in the convoy, and found that the government was unreasonable in declaring a state of emergency because there was no national emergency that he could see was really an Ottawa-based event. The government has already announced that it's going to appeal that decision from the Federal Court. But I don't want to debate whether Rouleau or Justice Mosley was correct. We'll see what the Federal Court of Appeal does with that. But just on the point of failure of federalism, I don't know if you have a view about whether there was a failure of federalism, and if there was, what does that mean for handling kind of more complex emergencies, things related to climate change, for example, that could easily cross provincial boundaries, for example?
Jocelyn Stacey: Yeah. Why don't I lead on that one? So, in terms of failure of federalism, like, I think it is fair to say that nobody walked, no government walked away from the Freedom Convoy looking very good, right? There were lots of things that could have been done differently, and hopefully, there's a lot of learning that's happening. Commissioner Rouleau used this phrase, failure of federalism, that had been, I think, sort of put to him by national security expert Leah West, and he used it to describe the lack of governmental collaboration that characterized, at least the early sort of part of the response to the convoy's presence in Ottawa. So, he was talking about how Premier Doug Ford, right, was absent from political-level discussion, leadership discussions that ought to have been trilateral discussions, right? So, federal, provincial and municipal. So, that speaks to the, that's kind of tiered approach and the challenges that can arise from that, that I mentioned earlier. So, here we had a municipality, we had the City of Ottawa trying to deal with a set of circumstances, and municipality falls within provincial jurisdiction and sort of did not have that level of government engaged in these high, at the political leadership level. And so, this was Commissioner Rouleau talking about sort of how unfortunate it was that Premier Ford showed up so belatedly only when the Ambassador Bridge became an issue. So, I do think that reflects a failure of federalism, right?
We have some, a set of issues that are clearly within provincial responsibility that are invoking conversations around the use of special emergency powers, and to not have leadership at all levels of jurisdiction, all orders of government, that are responsible for that. To not have them all engaged and sort of working together, I think, shows that failure of federalism. And then, I think the other thing that came through in that part of Commissioner Rouleau's reasoning was that that failure of federalism was sort of compounded before his own eyes, right? Because here he was with a mandate from the federal government, under federal legislation, but clearly, this was a multi-jurisdictional event, and the Premier and the then Solicitor General wouldn't show up before the commission and didn't testify. And so, I think Commissioner Rouleau was also sort of expressing his frustration that even in his role of trying to look backwards, as Nomi was saying, in order to look forward and figure out how we can do this better next time, he was being inhibited in doing his own job because he didn't have all of the information that he could have had. So, and then I think one of the challenges that we saw emerge was that that played out in a way that was sort of a failure of federalism, but if we look at the Emergencies Act itself, it is quite clearly built on the assumption of functioning federalism, right?
So, it is not built on an on an assumption that the federal government is going to take over powers that are normally in the sphere of provincial jurisdiction. Instead, the federal government can only issue an emergency response, only invoke emergency response measures, either in its sphere of jurisdiction, so dealing with war, international emergency, or it can add emergency measures to supplement an existing provincial response under certain conditions. And so, one of those conditions is that the circumstances have to have exceeded the capacity or authority of a province to deal with it. So, the act seems to assume, right, that the province has done everything it can to address the circumstance, and it's still not sufficient. Therefore, the federal government is going to come in and assist with an emergency response under the Emergencies Act. So that's, again, that tiered response of kind of functioning federalism, and we didn't see that play out with, in such a neat and tidy way with the Freedom Convoy. So, Nomi, do you want to talk about sort of what that portends for more complex circumstances?
Nomi Claire Lazar: Yeah. So, I think to bring a sort of a political science lens to this, it should be obvious that leaders who, leaders of different jurisdictions are going to have different political interests, and that whenever leaders, whether it's heads of state at the international level, or provincial heads or state heads at a federal level, that they're always going to have multiple audiences. So, a premier has the audience of their electorate as well as the audience of the federal government. And so, this sort of assumption that everyone's going to play nice basically assumes that politics will not be in play. And sometimes, that is the case. So, people do tend to come together when an emergency, especially if it's a natural disaster, first takes place.
So, people do tend to become very cooperative, at least temporarily. But the convoy situation did show that the structure, that the architecture is sort of dependent on that kind of cooperative approach. But we do have to anticipate in terms of climate that emergencies are going to become much more complex. So, it's already true that emergencies don't tend to stay in their lane. So, even if we think about COVID, we've got a public health situation, which creates an economic situation, which creates a political situation. And in the climate age, we can expect that this will just be exacerbated. So, if we're thinking about natural disasters, they can also generate terrific problems in terms of economics, in terms of even things as simple as people being able to access their money in banks. Natural disasters can cause disease outbreaks. We can talk about all of this also generating political disturbance. So, we have seen, for example this past summer, how even a request for people to relocate can become extremely politicized and result in political backlash.
And so, we can't even assume any more in the climate age that a natural disaster is going to be apolitical and is going to result in a level of, the level of cooperation across jurisdictions that we would want, that we would want to see. So, this is really an issue, because we do have this structure that's sort of based on this assumption of collaboration, cooperation, playing nicely together. And Canada really does not have mechanisms to deal with that. One thing that has occurred to me is that, you know, this is a good role for public servants. I mean, it's not enough, but it's something. So, when we do have that, kind of the stability of the public service across jurisdictions that can create avenues for communication and engagement, that can help mitigate should those inter-jurisdictional tensions become really extreme at some point in the future. But this is definitely a weakness in Canada's emergency framework.
Maîtres François Daigle: And maybe just to compound the problem a little bit more, like, what happens if the provinces and the federal government, this or another jurisdiction that's involved, disagree about whether something is an emergency or not? Or worse, if the federal government thinks that the actions of a province or of a jurisdiction constitutes an emergency?
Nomi Claire Lazar: Exactly.
Maîtres François Daigle: How is federalism engaged there and how do we manage through that? How do we manage through those conflicts?
Nomi Claire Lazar: Well, the fact that Canada, that pretty much every other major federal government has anticipated this, and we have not, I think is something we should reflect upon. Now, one consequence of our sort of polite federalism, right, our assumption of, in theory, at least, of cooperative federalism, is that even raising the issue might not be possible.
Maîtres François Daigle: But that's a fundamental Canadian value, though, politeness. Like, we're always polite, so… but if we can set that aside, how do we manage through the conflict?
Nomi Claire Lazar: Jocelyn, I hope you knew how to solve this one, because I sure do not.
Jocelyn Stacey: Yeah, I think it's a really difficult, it's a really difficult question. And I mean, my instincts on this are to shift, again, from thinking about the emergency, right, as this discrete, temporary event, and oh my goodness, how are we going to figure things out when everything goes wrong, and to instead sort of dial back the clock, right, and look at all of the work that can be done in advance of the inevitable extreme event to mitigate those risks, right? And so, it's true. I think what Nomi has said is right. I think the climate age, rather than making things less political because we're all in this together, is likely to make things hyperpolitical. So, if we can try to shift away from those, thinking about those extreme events, and try to build the collaboration through mitigating risks in a way that doesn't sort of get into those political tensions, we'll all be better off, right?
But I do think it is important to anticipate conflict. I think there is constitutional space, in theory, for the federal government to play a more assertive role. Whether that reflects or is possible within our constitutional politics is a different question. I mean, I will just say, these dynamics play out between the Canadian state and Indigenous peoples, right, where we do have these extreme conflicts. We have had a drinking water crisis in First Nations communities for decades, and decades, and decades, that communities have declared emergencies, right? Youth suicide crises that have been declared emergencies and are not being treated as such by sort of provincial, territorial and federal partners. So, it's not totally a theoretical question, right? Like, these dynamics are already playing out and I don't know that we're handling them especially well already.
Nomi Claire Lazar: I'll just add a couple of good news thingies.
Maîtres François Daigle: Go ahead.
Nomi Claire Lazar: If they are good, just to make it a little less of a downer. So, I mentioned in my presentation that there's all of this informal, these informal aspects of the architecture as well. And so, I remember when I first started studying states of emergency, and I realized that we have states of emergency all the time in Canada. And I was talking to the former Mayor of Winnipeg, who had managed the city through one of the big floods, and I said to her, it was sort of shocking to me to see all of this power, right, that was available to you with almost no accountability. Did it, and I said to her, this might sound like a silly question, but it's not. Why didn't you? Like, what went through your head that made you not abuse those powers, that made you work collaboratively? And she just laughed and she said, well, it just never crossed my mind to lock up my opponents or whatever. And this is political culture, right? This is part of that architecture that is not formal. This is that collective commitment to the Rule of Law Project, which needs to be cultivated not just through legislation or changes to the black-letter legal framework through which through which we function, but through how we think about leadership, how we teach our children about leadership, who we choose as our leaders.
I tell my students, among the things you should think about when you elect someone is, is this someone that you would trust to manage you through a crisis? And that by sort of centralizing those values, and when people come to the table, focusing on those values, that it doesn't get us all the way for sure, but maybe gets us some of the way. So, I guess the lesson there, what I would want people to take away is, yes, we need to focus on what's missing in the formal architecture, but we must not lose sight of these informal aspects of the architecture and the critical role they play, especially in crises where situations are not tidy and where complex might bubble up that remained sort of under the surface previously.
Maîtres François Daigle: So, maybe you have, you could talk a little bit about where you think the gaps are, both in our legislative frameworks, like not just the federal one, but provincial, and municipal and Indigenous, to the extent that they they've set those out. So, are there, I mean, we've talked about one obvious one, which is that our federal act, even though I think constitutionally there may be the space to take over some provincial space, doesn't allow us to do that. We'd have to work outside the Emergencies Act and, I think, develop new law to do that. But beyond just the legislative, beyond the normative, just in terms of the working space, the political space for that, and I think your, Jocelyn, your reflex to go to the prevention side I think is the right one because that's where those conversations need to happen. But I don't know if you have any further reflections on some of the gaps that we should be worried about and what we can do about them.
Nomi Claire Lazar: Do you want me to?
Jocelyn Stacey: Yeah.
Nomi Claire Lazar: Do you want to take the provincial and… okay.
Jocelyn Stacey: Sure, yeah. So, I mean, I think you have touched on some of those big gaps already, François. So, I think one of the biggest gaps is that most of our emergency legislation is reactive and not proactive. So, we don't have robust legislative frameworks in place that actually sort of set us on a course of implementing the Sendai Framework on Disaster Risk Reduction. B.C. is the only jurisdiction in Canada, at least the only common law jurisdiction, I'm not as familiar with Quebec, that has attempted to implement Sendai, but it is still very much a first step. What that means, what that looks like in the legislation, is that a significant focus of the legislation is actually setting out the relationships between different parties, right, between different governments, between different actors that are critical in the emergency context. So, I do think that that is really valuable to take a look at, B.C.'s new act as a way of shifting the conversation to a more proactive, less reactive approach. Another key missing piece in all provincial and territorial legislation is accountability. No provincial or territorial legislation has the layers of accountability that we see in the Federal Emergencies Act. So, when we're focusing on the use of those special powers, that's a huge missing piece at the provincial and territorial level. And I think that has important implications for federalism, because essentially, it means the federal government's playing by different rules than the provinces and territories, right? Those mechanisms of accountability are really important for incentivizing the provincial and territorial governments to do better next time. So, to have more of those accountability mechanisms in place, I think would have positive impacts sort of at the level of federalism. Nomi?
Maîtres François Daigle: Okay. Nomi, maybe very quickly because we're wrapping up.
Nomi Claire Lazar: Yeah. And because those provincial pieces of legislation don't have those aspects of accountability, we should foresee that there could come a time where, when we say that some provincial action is the emergency, that there is so much scope for potential overreach there, and it's good that informal constraints have kept that under control until now. But we don't know what will happen ten years from now. At the federal level, the Emergencies Act is already quite accountable, but we have identified a few areas where it could be, where it could be tightened up, and we've put out a special journal edition that I'll just plug here. So, of the Manitoba Law Journal, issue 46, where we and a number of constitutional and other scholars in Canada have put forward a series of quick fixes in some cases, more substantive fixes in other cases, that tighten up the Emergencies Act for the future and also deal with some of these federalism questions. So, I'll leave it at that.
Maîtres François Daigle: Great. Okay. Well, thank you both very much. This has been a great overview of some of the, some of the tricky issues around emergency preparedness and emergency response, notably that we don't do enough prevention and we leave recovery for the end. So, thank you both for that. I hope everybody's enjoyed our discussion today. This was the, I think there's one more event in our federalism series, and that's going to be on Federations in the World, and that takes place on April 22nd, 2024. So, I encourage those who are interested to visit the website of the School and to register for that. So, once again, thank you both, and thank you everyone for participating and have a great day.
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