Environment Committee on Jan. 30th, 2024

[The Chair, Liberal, Francis Scarpaleggia]

Good afternoon, and a Happy New Year to all of you.

I'd like to welcome the members of the committee. It's been some time since we've seen each other.

I hope you had a happy holiday and are ready to get back to our study on the federal freshwater policy.

We have two panels today. I offer my apologies to the panellists for the delays that occurred in the House around voting.

In the first panel, we have Mr. Caleb Behn, who will be speaking as an individual. From the International Observatory on Nature's Rights, we have Yenny Vega Cardenas and Amélie Delage. From the Saskatchewan Association of Rural Municipalities, we have Mr. Ray Orb. From West Coast Environmental Law Association, we have Deborah Carlson.

We'll start with five-minute opening statements.

We'll go to you, Mr. Behn—

[Dan Mazier, Conservative, Dauphin—Swan River—Neepawa, MB]

Chair, I have a point of order.

Minister Guilbeault promised we'd get the names of the senators he was talking to about Bill C-234. I don't know if you've heard back from him or not. We've issued a letter.

[The Chair, Liberal, Francis Scarpaleggia]

Is that a point of order?

I can find out. I'll ask him tomorrow when I see him.

[Dan Mazier, Conservative, Dauphin—Swan River—Neepawa, MB]

Thank you.

[The Chair, Liberal, Francis Scarpaleggia]

We'll start with Mr. Behn for five minutes.

[Caleb Behn, As an Individual]

Salutations.

My name is Caleb Behn, I'm Eh-Cho Dene and Dunne Za. I appear in my capacity as an individual. I acknowledge my presence on unceded and occupied Algonquin territory. It's such an honour and privilege to be here.

To you, Mr. Chair, in particular, I'd like to honour and hold up the work you've done on fresh water in many years previous. It's duly noted.

To the committee and to others, to Natalie the clerk for being so helpful, I'm so grateful and so honoured to be here.

I think humans' relationship to the non-human is going to be the defining challenge of all governments around the planet in the 21st century. I think fresh water is going to be one of the key mechanisms, modes and mediums by which that challenge will manifest. I understand today we're talking about freshwater rights—quote, unquote. I think a point others have made in their testimony and which others today will make in their testimony, Yenny in particular and others, is that rights and responsibilities are intrinsically connected. As those who serve the public, I hold you up, because you live your responsibilities relative to the rights that Canadians hold.

My core point is that because of this defining complexity of the 21st century, we are going to have to confront our relationship to nature, our relationship to the non-human, whether that's artificial intelligence or based upon whatever crazy footage that is non-human intelligence on this planet or whatever else, what is coming and what you see already, like the back-to-back atmospheric rivers in Vancouver, or Pangnirtung being the hottest city in Canada this last month, or the unprecedented droughts in various locations. There's the fact that in my territory in northeastern British Columbia—I come from West Moberly First Nations, my mom's reserve, and I'm registered to my dad's reserve, Fort Nelson First Nation—we've had a 45° difference in the last three and a half weeks from -40° to to +8°, +9°.

What I propose is that the legal, political and academic processes of this country do not have sufficient iterative capacity to evolve relative to the challenges of the 21st century. Fresh water is going to be one of the defining challenges of what is coming. What I propose to the committee, with the utmost respect, is that out of your recommendations and processes, we look at challenges to fresh water not as crises. As I've seen in others' testimony there are crises across the board. There are forthcoming crises, and there are past crises, like the first nations' freshwater reality, which I used to work on extensively, but what is coming, in my view, requires us to deeply think about these crises as opportunities.

To that end, I'm going to recommend, and I'll explain why, this committee optimize the federal government's creative and courageous leadership in collaboration with all orders of government from the micro, the municipalities to the medial, the regions, provinces, territories, and the macro, the federal and international, to engage the question of fresh water. I think that can be done. I've read the testimonies of others, and I think I understand the forthcoming testimonies of others, and this is a consistent message. Whether it's academia, the private sector, advocacy groups, non-governmental organizations, the Assembly of First Nations, where I have the privilege to work as the director of rights—although I'm appearing here on an individual basis—there is consistent messaging that creative and courageous leadership is needed.

Canada, because of its multi-juridical nature, has a uniquely capable mechanism with, in certain cases, provincial UN declaration implementation legislation, such as that from British Columbia. At the federal level, I'd like to encourage and hold up all members of Parliament for passing the UN declaration implementation legislation recently. It's a project I was deeply involved in and I remain deeply involved in. The national action plan and the annual reporting processes, all of these things are mechanisms to illustrate...and obviously are referred to others' testimony as bases and components of how this government and us as a society, as a nation-state, interface. My point is that our interface with the natural world is actually what's going to be the defining problem of the 21st century.

First nations laws and legal orders are the only basis from a rights-based perspective. We will speak to rights as a question that can help us evolve rapidly without engaging the division of powers, the co-operative federalism problem, the politicization and weaponization of particular issues, projects and endeavours so that collective solutions can be achieved.

Fresh water is going to be the defining nexus of our relationship to the non-human in the 21st century. You have to seriously consider what is likely to come. There are black swan events on an ongoing and regular basis that all of you are seeing in your ridings. There are unanticipated problems like the PFAS testimony regarding microplastics. There are a myriad of issues, and I'm not going to go into them, although I'll be making supplementary written submissions afterwards.

My core point is with regard to the right relationship with the non-human and water. I was thinking about the Canada water agency. I'll end with this, and then give you some visions for the future. The Canada water agency has not queried the question of what is the agency of water. I don't offer that as some trite turn of phrase. I say that in a genuine and intentional way. This nation-state has great potential, despite its horrific history relative to my people and my family, under the guise of law, sending my dad to a residential school at five years of age to be abused.

I offer these visions for the committee. One, in 30 years, an indigenous language-based coding system will be invented in Vancouver that interfaces with the orcas and the salmon in the freshwater and saltwater spaces in Vancouver. It will tell the regulatory agency, which is human, non-human and first nations led, that there is an exceedance of a given compound and that the exceedance leads to a rapid response mechanism.

Recognizing the time, Mr. Chair, perhaps I'll end there. I have other ideas.

[The Chair, Liberal, Francis Scarpaleggia]

I really appreciate that you started this conversation, because it opens the door to the issues we need to explore. Thank you. I'm sure there will be many questions which will allow you, Mr. Behn, to expound on those points.

We'll go now to Ms. Cardenas.

[Yenny Vega Cardenas, President, International Observatory on Nature’s Rights]

Good evening to you all.

I would like to thank the Standing Committee on the Environment and Sustainable Development for inviting us to participate in this study.

Ms. Amélie Delage, who is also a member of the International Observatory on Nature's Rights, and I are honoured to have been invited.

I am a lawyer, a doctor of water law, an expert member and participant in the United Nations' “Harmony with Nature” initiative. I am also president of the observatory.

[Amélie Delage, Intern, Pro Bono Student Canada, McGill University, International Observatory on Nature’s Rights]

Hello. My name is Amélie Delage. I'm an intern at the observatory and have a PhD in political science. I'm currently studying law at McGill University. Thank you for having us.

Today, we want to emphasize three main points.

First, we want to clarify the concept of water that we want to promote in Canada. At the observatory, we believe we need to move from an anthropocentric perspective to an ecocentric vision of nature. We want to stress the importance of recognizing the legal personality of the St. Lawrence River, and of having the tools to protect the rights of nature. Our goal is to see a specialized water tribunal established.

[Yenny Vega Cardenas]

We've been studying different water management models around the world for 15 years, and we've seen that water has two opposing statuses. There's water as a common good, off-limits to and inappropriate for trade, to which access is also a fundamental human right. There is also water as a commodity. This concept leads to the creation of property rights over water, which enable the distribution of water for different uses as well as the exchange of water-related securities in stock markets.

However, these two visions fail to take into account a crucial aspect, namely that water is a vital and sacred element that enables life on earth for all species. Water is life itself, as the first nations say. It has a spirit, it is alive.

The International Observatory on Nature's Rights, or OIDN, advocates the recognition of people's right to water and sanitation. More fundamentally, the observatory promotes the recognition of water as part of an ecosystem, a living environment with rights. Water does not exist exclusively for our own benefit. It is part of an ecosystem, and it must be shared with the other species with whom we occupy this common home.

We want to propose a holistic vision of water that recognizes our duty to honour, respect and protect it. Moreover, we must act towards it not as masters and owners, but rather as stewards or guardians.

A governance model that recognizes water's legal personality would allow us to hold ourselves accountable to our role as trustees. In fact, the NDP supports the recognition of the legal personality of the St. Lawrence River proposed by the OIDN, and a bill to recognize the legal personality of the river has already been tabled in the House of Commons.

This recognition is also supported by the St. Lawrence Alliance, made up of various Quebec municipalities, non-governmental organizations, or NGOs, and research centres.

Recently, we also obtained the support of the Assembly of First Nations of Quebec and Labrador, which recognized, on April 14, the legal personality of the river. I have a document showing this.

So these are innovative tools. We're proposing this new vision of water so that we can preserve it, restore it, and ultimately understand that protecting water and ecosystems is our shared responsibility.

[Amélie Delage]

The governance model we are proposing comprises three pillars: a guardian committee, a strategic committee and a scientific committee. This model would facilitate integrated, collaborative and participatory management, so as to consider users from all fields, such as agriculture, industry, marine activities, fishing and recreational activities. Above all, this model allows us to consider not only human imperatives, such as access to drinking water, but also the imperatives of other species that are part of our ecosystems.

This model would allow us to bring all the players together in one forum so that everyone could agree on compromises that would preserve waterways, listen to science and listen to the traditional and ancestral knowledge of indigenous communities.

We also propose to set up a specialized water tribunal, as water disputes will multiply in the context of climate change and energy transition.

The observatory's recommendations are in line with the objective of the mandate given to the Canada Water Agency. The innovative governance model we propose will enable Canada to shine internationally through the enactment of legislation that enables sustainable management of assets.

Recognition of the legal personality of water would make it possible to improve water management not only to improve water quality, but also to restore, protect and manage bodies of water of national importance.

This vision of rights is consistent with that recognized by legal resolutions adopted by indigenous people. It would therefore allow for real collaboration, which will prove historic.

The rights of nature model we propose would create a real mechanism for recognizing the responsibility of various sectors of industry and business. It would also prevent the misuse of water, which excludes any royalties to Canadians.

We call on you today because you are truly in a privileged position that allows you to change the status quo. You'll have the opportunity to tell our children and grandchildren that you really made a difference, and that they'll be able to swim in Canadian rivers, drink Canadian water and enjoy Canadian sports. You'll be able to say that our agricultural and industrial products are made responsibly, because they're part of an approach that protects people's health.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you very much.

As I mentioned earlier, there will certainly be a lot of questions.

I'd like to go now to the Saskatchewan Association of Rural Municipalities and Mr. Orb, via video conference.

Go ahead. You have five minutes, please.

[Ray Orb, President, Saskatchewan Association of Rural Municipalities]

Thank you, Mr. Chairman.

My name is Ray Orb, and I'm president of the Saskatchewan Association of Rural Municipalities, known as SARM.

I was born and raised and live in the small farming community of Cupar, northeast of Regina, Saskatchewan, with a population of approximately 625.

I'd like to thank the Standing Committee on Environment and Sustainable Development for the opportunity to share our association's thoughts as it studies fresh water in Canada and the role of the federal government.

SARM has been the voice of rural Saskatchewan and has served the membership of Saskatchewan's rural and municipal governments for over 100 years. Today I express the viewpoints of those we represent, delving into rural perspectives on fresh water in Canada and examining how the role of the federal government might influence our livelihoods in rural Saskatchewan.

Agriculture is the backbone of Saskatchewan's rural economy, which relies heavily on a consistent and reliable supply of fresh water, especially for groundwater and for irrigation. Crops and livestock require sufficient water to thrive, ensuring food security for not only our country but also our customers abroad. We need fresh water to sustain the livelihoods of countless families not just in Saskatchewan but across Canada.

By working collectively, the federal government will better understand the dynamics and potential harmful impacts on watershed and groundwater recharge, along with ensuring agricultural access and resiliency to sustainable high-quality water. It will also be essential for the agency to leverage other federal government entities, such as Agriculture and Agri-Food Canada, the Pest Management Regulatory Agency and Environment and Climate Change Canada, to consider all the potential impacts on a larger scale.

SARM voiced concerns some time ago about creating a Canada water agency. We are concerned that we will have duplication since we already have a Saskatchewan Water Security Agency and a strong entity in the Saskatchewan Ministry of Environment.

In essence, water and water quality are a multi-jurisdictional issue and they must be dealt with in that manner.

Although we are not in favour of this agency, we do anticipate that the agency will need transparency with the provinces. To achieve strong working relationships with the provinces, we recommend sharing data and knowledge; engaging with agencies, councils and organizations in each province on proposed changes to fresh water to consider impacts to all sectors of each province; leveraging the knowledge of local and regional networks involved in water management in each province; further strengthening their sources; ensuring that there is a sense of respect for jurisdiction and constitutional authority in each province; and continuing to dialogue with SARM on issues that affect farmers, ranchers and rural municipalities.

Saskatchewan is an active participant in water management. An example of our actions can be seen in the Lake Diefenbaker irrigation expansion project. Saskatchewan provides funding through associations and programs, such as the Saskatchewan Irrigation Projects Association and the farm and ranch water infrastructure program to ensure that farmers and producers can work together to provide fresh water access across Saskatchewan. A primary focus of the agency should be on funding water management projects across Canada to ensure that provinces can work efficiently and effectively to preserve freshwater resources. With additional funding stability and support, beyond the Province of Saskatchewan borrowing money from the Canada Infrastructure Bank, the federal government could help provinces dramatically in making a bigger impact on freshwater resources.

The Saskatchewan Water Security Agency is working toward developing the Saskatchewan agricultural water stewardship policy, which will aim to preserve, restore and protect the wetlands in Saskatchewan. On a larger scale, the agency will need to develop a sustainable and resilient freshwater management strategy that will work with all provinces. This strategy will be essential to help provinces adapt to these federal changes and mitigate potential risks. It is crucial that the federal government, provinces and territories work together to ensure and build a sustainable future for generations to come.

In closing, on behalf of our member rural municipalities and rural Saskatchewan, we thank the standing committee for the opportunity for us to lend our voice to this important conversation.

We look forward to continued dialogue to work together to further the best interests of all Canadians.

Thank you.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you, Mr. Orb.

We'll go next to Ms. Carlson. I'm told that, because of technical difficulties with interpretation, although it will be possible for Ms. Carlson to deliver her opening statement, it won't be possible to engage her in a Q and A. The interpreters do have her brief in both languages, and therefore she can go ahead and give her opening statement.

Go ahead, Ms. Carlson.

[Deborah Carlson, Staff Lawyer, West Coast Environmental Law Association]

Thank you.

Good afternoon, committee members. My name is Deborah Carlson. I’m a staff lawyer at West Coast Environmental Law. We are a not-for-profit law organization based in Vancouver, on the Coast Salish territories of the Musqueam, Squamish and Tsleil-Waututh peoples. That’s where I am calling from today.

Thank you for the invitation to speak to this committee about freshwater rights. I will share some reflections on freshwater rights and then, based on the work we're doing in the lower Fraser region, I'll offer two recommendations for your consideration.

One place we see freshwater rights, which aligns with what you've already heard, is in laws like the B.C. Water Sustainability Act. It contains a water allocation regime. Under this law, water users obtain water licences. This is used to manage conflict over a scarce resource. Last year, as B.C. experienced yet another hot, dry summer, temporary orders were needed to restrict water use in order to protect fish. In a changing climate with more summer droughts, we're only going to see more instances where we really bump into water scarcity as a reality.

Legal rights to water, as you have heard, can also deal with water quality. Only Quebec has legislated a human right to clean water, but as you know, the Canadian Environmental Protection Act was amended last year to include a human right to a healthy environment. Of course, there can also be rights of nature and rights for nature. I believe you've heard about that as well.

This is water through the lens of rights, but at their heart these examples reflect our relationships with freshwater as governed by federal and provincial law. It's scarce, but we're allowed to be demanding consumers whose activities then need to be restrained. This is only happening at the point of crisis.

Second, our laws allow us to engage in activities that introduce harmful substances into fresh water. Despite advances in technology, there are still problems with well-known contaminants as well as new ones. We're not managing the cumulative effects. This is another important point. The tools we rely on are a variety of federal and provincial laws. They're not particularly coordinated to manage these relationships, so we do this in a very fragmented way. Again, as you've heard, there are clear opportunities to have more holistic and reciprocal relationships with water. We need them, especially in a changing climate. We can look towards indigenous laws and practices, because they have supported sustainable and adaptable ways of living on the landscape for millennia and millennia.

I have two quick recommendations about the Canada water agency linked to the work we're doing in supporting in the lower Fraser region. The first is to ensure that the Canada water agency is fully resourced and has the support required across federal departments to achieve its stated mandate to act as a point of coordination for federal programs and activities, including funding that affects fresh water.

In the lower Fraser, there is a salmon crisis. The science is clear that freshwater habitat protection and restoration, including fish passage, is essential. At the same time, this densely populated region, Canada’s Pacific gateway, is exposed to catastrophic flood risks. It needs to move on from outdated and ineffective flood control practices. There are win-win-wins to be had from adopting integrated flood plain management strategies. They are intimately connected with managing our freshwater relationships.

We're part of the Lower Fraser Floodplains Coalition, a group that's working with the first nations-led Emergency Planning Secretariat to lead a new collaborative process with first nations, local governments, farmers and the B.C. government to plan for flood plain resilience, including nature-based infrastructure. We are seeing success through dialogue and relationship building. Emerging ideas for flood risk reduction and resilience involve transportation, agriculture, fish habitat restoration, addressing historical inequities with first nations, on-the-ground implementation of UNDRIP and so on.

This work touches many federal departments—Environment and Climate Change Canada, Infrastructure, Fisheries, Public Safety Canada, Natural Resources Canada and so on—and it would be so helpful if they were all rowing in the same boat. We do see a valuable role for the agency in coordinating and perhaps catalyzing freshwater objectives across federal departments, looking at both regulation and funding programs.

A second recommendation is to ensure that the proposed freshwater data strategy supports regional priorities and needs for freshwater ecosystem management, restoration and resilience building. This strategy should be co-developed with indigenous peoples, such as the first nations in the Fraser River region. The data strategy should include indicators that can be used to evaluate trends. Capacity and connections with academic institutions in the regions should also be promoted. The first nations principles of ownership, control, access and possession should be followed.

In closing, we have a lot of opportunity to manage our relationships with water better. It means managing ourselves in the landscape. We need to do this in a more holistic and integrated way, and we have ideas and opportunities to do so.

Thank you.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you very much, Ms. Carlson.

We'll now move on to questions.

Mr. Mazier, you have the floor.

[Dan Mazier, Conservative, Dauphin—Swan River—Neepawa, MB]

Thank you, Chair.

Thank you to the witnesses for coming out today.

My questions will be for Mr. Orb, who is online.

Was SARM consulted by the federal government on the Canada water agency, and if so, were you satisfied with the consultation process?

[Ray Orb]

Thanks for the question, Mr. Mazier.

We weren't consulted directly, but we inquired some time ago when we heard there was going to possibly be a water agency office in Regina, Saskatchewan. We did meet with someone from the federal government who was part of the bureaucracy. The answers that we received at that time were very vague, as I think they are now.

We don't know what the mandate of the water agency is. We know they're concerned about fresh water, of course, and that includes, for our producers, drinking water. However, we simply haven't been provided enough answers and, as I mentioned, we're concerned about the creation of this agency.

[Dan Mazier, Conservative, Dauphin—Swan River—Neepawa, MB]

Needless to say, you are opposed to the development of the water agency.

I think a few of the witnesses commented about getting rid of the bureaucracy so the local level can actually deal with water issues. Would you agree with that statement?

Not being a farmer myself and working out there, I've often lamented that people in government should just get out of the way and let the locals, the municipalities and even the provincial government figure it out. They're living on the landscape. They're the ones directly impacted.

If government could ever create an agency like that, I think it would be the first time ever. Is that correct?

[Ray Orb]

I think it would be probably the first time ever.

Definitely, I think the people who know the best about what happens on their own land would be, obviously, first nations people, who are our neighbours in lots of cases in this province. However, the farmers and ranchers who live on this land require safe drinking water for their families, but also for the animals they raise on their farms.

That's why we're concerned about duplication and the issues that we had in the past with DFO. We had DFO officers in Regina who seemed to have a mandate of trying to find a fish on some farm where there was not really a stream, certainly not a river, and there was just the bureaucracy of even doing our municipal projects. It does hold the projects up and increases the costs of the projects as well.

[Dan Mazier, Conservative, Dauphin—Swan River—Neepawa, MB]

I was going to bring up the Department of Fisheries and Oceans. I too had experienced those regulations back in the nineties. I think this goes back to why we're so suspicious of developing another federal agency. DFO still hasn't really cleaned up their act. I've been talking to the fisheries committee and some of the people over there. It sounds like it's more of a mess than ever, especially when they come into landlocked areas. It creates lots of problems for not only the department heads in there, but also the people who are living on the land. Instead of creating solutions, they're actually creating problems for all involved.

Would you recommend that the federal government obtain approval from all provinces before legislating the Canada water agency so jurisdictional concerns can be addressed?

[Ray Orb]

Yes, definitely. That's why I mentioned constitutional rights, because we know that the provinces have rights over some of their resources, and we believe that water is really a resource. We understand that the federal government does have some jurisdiction over federal water, there is no doubt about that, but definitely they need to consult with provinces like Saskatchewan. Our municipalities, like every other province, I think, are a creation of our provincial government. Our provincial government here, as you may know, is not in favour of the creation of another agency when we already have a water agency in this province that has a mandate to provide safe drinking water, allocation for irrigation and things like that. I think they're doing a good job, and that's why we think there needs to be no duplication.

[Dan Mazier, Conservative, Dauphin—Swan River—Neepawa, MB]

Do you have any recommendation on what types of projects the Canada water agency could support or fund? If you could create the water agency yourself, what would it look like to you?

[Ray Orb]

Even though I might not be very popular right now in Saskatchewan, if I did have the mandate to do something, it would be to look at the Lake Diefenbaker expansion project. I think there is a role there for the federal government.

I remember meeting with minister Ralph Goodale years ago, when he was our minister of corrections and public safety. He mentioned that we need a big project in this province to create lots of jobs and to provide more irrigation to produce food. I think the federal government needs to think that the role of our water agency, perhaps, is to co-fund the expansion at Lake Diefenbaker. The Province of Saskatchewan simply cannot do it on their own. Asking the province to go to an infrastructure bank and borrow the money—we're talking about billions of dollars—I don't think is fair for a province like Saskatchewan. I think that's a role for the federal government, to provide infrastructure funding, like for the Diefenbaker expansion, to the Province of Saskatchewan.

[The Chair, Liberal, Francis Scarpaleggia]

You have only 15 seconds, Mr. Mazier. Okay.

Mr. Longfield.