An Indigenous Feminist Legal Approach to the Federal Carbon Tax Appeals



Indigenous Feminist Legal Lens

The Supreme Court of Canada tentatively scheduled a January 2020 date to hear the federal carbon tax appeal.


Earlier in 2019, the Saskatchewan’s court of appeal upheld the Liberal’s federal carbon tax as constitutionally valid. Soon after, the AG of Saskatchewan filed its notice of appeal at Canada’s highest court and Alberta, among others, applied for intervener status.


Ontario also challenged this federal legislation and Ontario’s court of appeal released its decision in June. Ontario’s court of appeal held that it is constitutionally valid.


Generally speaking, both courts relied on the principle that Parliament may pass legislation that is of national concern under Parliament’s residual constitutional powers (i.e. peace, order and good government).


In the Ontario decision, there is some engagement with Indigenous issues but even less engagement in the Saskatchewan decision. It should not come as a surprise that the Act at the center of these decisions contains only minor references to Indigenous rights. Still, this is not to say that there is no engagement with Indigenous issues.


When I review these decisions, however, I think about the glaring question: Where are the women, and more importantly, where are Indigenous women? I hope to outline my concerns with the erasure of Indigenous women from discussions on climate change in these appeals, or erasure from environmental justice. This is not the first time I have written about environmental justice issues and Indigenous women (for example, you can read more here).


I understand the barriers that Indigenous communities face in having their voice at the table to begin with, and to have a focused or dedicated voice that concerns Indigenous women is especially challenging. This is particularly so for other equity seeking groups (i.e. 2SLGBTQ+, Black, etc.) who also identify as Indigenous.


In the Saskatchewan decision, the Indigenous position focused largely on Aboriginal rights, as defined in Canada’s section 35 (para 203), or the duty to consult provision. In the Ontario decision, this argument was flushed out a bit more but still limiting, similar to the Saskatchewan appeal, in that it did not mention anything about the gendered effects of environmental changes on/in Indigenous communities. For example, the Indigenous position in the Ontario decision briefly highlighted the impacts of environmental changes such as wildfires on Indigenous people’s traditional right to hunt or maintain a traditional way of life (para 13).


These are important concerns because, Indigenous rights aside, without access to this way of living, living in certain regions become more difficult. Nevertheless, what is missing from these decisions are the gendered effects, including on/in Indigenous communities, of environmental changes, and what is missing from these discussions overall (i.e., outside of these appeals) are the troubling ways gender is taken up in environmental discussions as a whole.


First, given the bare mention of Indigenous rights in the Act, one can expect at minimum erasure of gender in these decisions for this reason. Granted, the Act does mention Indigenous people and low-income people. Still, the issue in these appeals focus on the fact that the provinces who challenge the Act’s validity have decided to take minimal to no action on climate change and related policy. Once a province makes this decision to do nothing, the Act comes into play, and then, the question on appeal is more about what happens when a province does nothing. Keeping gender in mind, I believe focusing on when a province takes no action is a distraction. Rather, I believe the question should become who is likely to carry the burden of being both Indigenous and low-income when there is no action taken to remedy environmental effects on/in our communities, Indigenous or not. Ultimately, it will be women, young people and other equity seeking groups (i.e. 2SLGBTQ+, Black, etc.) who also identify as Indigenous who carry this burden.


When people often talk about gender and climate change in communities, the narratives conjure up the image of a particularly poor region with women/girls walking long distances to retrieve water (for example, see this WHO report).


In Canada, this discussion looks different because many Indigenous communities do not have access to clean drinking water, and they cannot just walk to another source, short or long distance. Sometimes bottles of water are flown in for drinking. Literally. As one can expect and in Indigenous communities, the discussion on gender looks different. It becomes more about ability to care for family, to provide safe housing or to access adequate health care.


Second, the erasure of gender in these cases are unsurprising. This ties into the second point in that gender is taken up in environmental discussions in a very selected manner, namely regarding Indigenous women and girls.


When I first started writing about environmental concerns and the effects of certain laws on Indigenous women and girls, I focused largely on anti-trafficking narratives. My position in these discussions is that we must focus on the economic and social context which surround the realities of Indigenous communities, specifically, those surrounded by natural resource extraction. I still think this is true. By focusing on this context, we begin to see that laws are enacted, and institutions created to rob Indigenous peoples of their freedom and labour, keeping in them in perpetual servitude without access to any benefits received from natural resource extraction (if that were even an option). You can read more here.


For example, around natural resource extraction sites, the narrative is that Indigenous women and girls are being trafficked and abused. The response to this narrative is usually more criminal laws and policing of Indigenous lands and bodies. It is never a question about the effects of environmental changes overall on Indigenous women and girls. This is a problem because it focuses on Indigenous women and girls as needing to be saved from individual violence as opposed to state inaction. State inaction includes failing to properly respond to the gender question in climate change and related policy. Consequently, these narratives focus on investing more into policing Indigenous communities, legitimizing the state, as opposed to investing in an Indigenous community’s sovereignty over its own land and resources.


In the end, I do hope that the appeals lead to a greater discussion on the issues facing Indigenous communities when it comes to the environment and climate change. Specifically, I do hope that this discussion goes beyond aboriginal rights as viewed in Canada’s constitutional landscape. I also hope that the discussion begins to focus on Indigenous women’s and girls’ sovereignty over their own bodies, instead of taking up our bodies in very narrow ways (i.e. anti-trafficking narratives that further the goal of the state). Discussions on violence must go beyond individual violence and talk about state inaction that appropriately considers Indigenous women's and girls' safety in more nuanced ways.

© 2019 - 2020 by Naomi Sayers

This website and associated materials do not contain legal advice and does not contain a guarantee, warranty, or prediction regarding the outcome of any legal matter. Unsolicited information will not be protected by lawyer-client privilege.

Photo Credit: Jessica Blaine Smith