Environment Committee on Jan. 30th, 2024

[Lloyd Longfield, Liberal, Guelph, ON]

Thank you, Mr. Chair.

Thank you to the witnesses.

It's great to be back studying water.

I want to start with Mr. Behn.

I think of water and the rights around water. Recently Minister Hajdu introduced Bill C-61. That's going to be key in establishing proposed safe drinking water and waste-water legislation in consultation with first nations.

The last piece of consultation is really the critical piece. The commitment coming forward from the federal government is $1.55 billion from 2024-25 and 2025-26 to support clean drinking water for first nations.

One thing I'm concerned about is that we start with clean water. How do we get to clean water as a right? How do we maintain that once we've eliminated all the boil water advisories that are occurring in first nations?

When I was in the Nishnawbe Aski Nation by Dryden several years ago, one of the elders said, “Stop poking holes in Mother Earth. Give us clean water to start so we don't have this problem.” It was a simple but really profound statement that I've taken with me. I've brought it to different committees where we've been studying issues around the rights around water.

Could you talk about how critical it is to have ongoing funding at the intersection where water, energy and indigenous law all meet, and, as you mentioned, other living beings?

[Caleb Behn]

No pressure.

[Lloyd Longfield, Liberal, Guelph, ON]

No. We don't have much time, but I wanted to hear your perspective as well as you can articulate it.

[Caleb Behn]

With the consent of the committee, I'll put in written submissions on one aspect of that.

[Lloyd Longfield, Liberal, Guelph, ON]

Sure.

[Caleb Behn]

My core proposition is that the iterative process of legal evolution in policy-making in this country, financially, politically, socially and legally, is not capable of adapting to the challenges. While I'm receptive to and cognizant of the massive amount of advocacy led by the first nations across the country, in that case, NAN, to get to addressing a long-term drinking water advisory versus a short-term drinking advisory.... In my nation where I live, we ship in water and we drive in water.

My core concern remains that at the interface....

This is my admonition to the committee, the government and to Canadians and to the world writ large. We have to understand that these circumstances of contestation—and to the earlier point about jurisdictional challenges and problems—and points of contestation are actually the opportunities for, say, SARM, the Province of Saskatchewan, the treaty nations there and many others, like farmers producing food security, to come to a conclusion that offers a solution.

My point is that this government and all orders of government inspired by the federal government need to proactively invest in it, cut out the funding delays and cut out some of the legal challenges.

At the energy-water nexus, I would encourage the committee to consider black swan events. What is coming is going to be stuff we didn't anticipate. It's likely going to be synergistic. It's probably going to be related to things like climate change and emergent disease.

I go back to the COVID issue. COVID proved to me that Canada could have solved the first nations' drinking water crises, because billions of dollars got pushed, laws changed, bureaucracies at every level—federal, provincial, municipal, territorial, everybody—got in line and did something for the good of this country.

In my view, we're going to have events like that again, so I strongly suggest that we proactively create some mechanism—perhaps in NAN, for example, and in that territory—and find some synergy. Find it in Saskatchewan. Find it on the fisheries issue. Find it in Quebec with the civil code and multiple legal orders aligned.

With the consent of the committee, I'll put in some written submissions on the particulars of that question, because it is a robust one.

Mahsi cho. Thank you for the time.

[Lloyd Longfield, Liberal, Guelph, ON]

Thank you for your answer.

I've been up to the Chippewas of Nawash, as well, and seen that it's not always about just water plants. You need the piping, the training and all the other infrastructure. At the same time, you need to put in broadband along the lines to solve other problems, so it is a complex thing but, yes, you have to have attention.

[Caleb Behn]

I have another point just on the broadband issue.

I was thinking about Iqaluit and the response to the housing crisis up there. I think the mayor recently said, “We can build the houses, but we don't have the source water protection.”

What I would suggest is if you look at the synergy between emerging technologies.... Where I live, we don't have functional broadband, so I run Elon Musk's Starlink. Yesterday, he announced that they just put the first Neuralink into a human. Technology is changing. Everything is changing quickly.

I strongly recommend that this committee recommend to government that investment in solving these long-standing human rights crises should optimize for the evolutionary capacity you're going to need to deal with the 21st century. That requires broadband interface synergistic with hard infrastructure investment and interfaced with legal evolution led by first nations, in my respectful view.

[Lloyd Longfield, Liberal, Guelph, ON]

And the monitoring that goes along with the broadband.

Thank you.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Madam Pauzé.

[Monique Pauzé, Bloc, Repentigny, QC]

Thank you to all the witnesses for being with us.

Ms. Cardenas, I first heard of you in an article in Le Devoir. In it, you invoked section 8 of the act to affirm the collective nature of water resources and to promote better governance of water and associated environments. By the way, I completely agree about the collective nature of water resources.

In your opinion, granting legal status to the St. Lawrence River would strengthen the preservation of this great river and it would be a huge symbolic gesture.

That's kind of where I'm at in my thinking. Symbolic gestures of this nature are admirable, of course, but do they really enable us to protect the resource? For over 30 years, the UN has been trying to establish international rules for the protection of water, whether in Helsinki, New York or Berlin, and it has not succeeded.

How would the recognition of a legal status for water finally lead to the establishment of rules, or the updating of regulations and the adoption of concrete mechanisms, and even sanctions?

[Yenny Vega Cardenas]

Thank you very much for your question and for your interest in this topic, Ms. Pauzé.

Indeed, section 8 of the act affirming the collective nature of water resources and promoting better governance of water and associated environments, in Quebec is very avant-garde, as it introduces the notion of no-fault liability when damage is caused to a watercourse. As a result, the people who cause the damage can be sued even if not at fault.

The problem is that the Attorney General is the only one who can bring this action, even though it is he, as the representative of the Quebec government, who grants pollution permits. He cannot sue for damages that he himself has authorized. This is a conflict of interest.

As for the recognition of a legal personality for the river, this also includes the appointment of guardians with a view to diluting powers and increasing the number of players at the discussion table. These are players who are committed to protecting the river, such as first nations, riverside communities, non-governmental organizations and scientists. They are the ones who will ultimately be able to be the voice of the river.

What is the voice of the river, really? It's what science and ancestral knowledge will tell us. These are the consequences of our actions that have contributed to polluting the river, but that we didn't know about at the time. Scientists will open our eyes to enable us to make the best possible decisions and prevent damage.

If players don't want to listen to the science or the warnings of the guardians, at that point we can use the courts as a last resort.

[Monique Pauzé, Bloc, Repentigny, QC]

You're talking about sanctions here, of course, whether they're financial, penal or even criminal.

What we're interested in is establishing clear rules and enforceable sanctions, rather than taking symbolic measures. Symbolic gestures may be interesting, but they don't stop harmful projects.

Wouldn't granting legal personality to the St. Lawrence River or the Magpie River, for example, generate a false sense of security and protection?

[Yenny Vega Cardenas]

In fact, in Ecuador, we've recognized nature's rights. At first, it was symbolic, because it was about changing people's relationship with nature so that they see it as a living being or a person who can suffer harm. Symbolic gestures can change the way we look at things. The Canadian flag, for example, is a symbol we honour, and we don't use it as a towel. This would change our relationship with the river. We would honour it and respect it because it would have rights as a legal person.

In the past, we women weren't considered persons, and people wondered why we'd be granted that status. People laughed about it. Even the Supreme Court said we weren't people. Today, we're people and it's become normal. We have rights and we can be here to advance new ideas.

Nature is also the subject of a second revolution, which will lead to the establishment of rights. So, at some point, we might see a tribunal, as we saw in Ecuador, put the rights of a mountain and those of a multinational in the balance to decide which wins.

[Monique Pauzé, Bloc, Repentigny, QC]

In my opinion, this is exactly the question that needs to be asked. Right now, what we're seeing is that the rights of multinationals always take precedence over the rights of nature. Symbolism is all well and good, but I don't think it's prescriptive or severe enough. I was a teacher in my other life, so I need prescriptive standards.

Ms. Delage, you talked about the Canada Water Agency, and Mr. Caleb Behn also talked about it. Mr. Behn said, for example, that the Canada Water Agency has not clarified the fundamental concepts on which it is based. You are of the opinion that the agency is innovative.

When I hear Mr. Behn's and Mr. Orb's comments, and when I read about topics we'll be discussing with the next witnesses, I realize that there was no upstream political process to define the Canada Water Agency's purposes and guiding principles.

Is it really that innovative?

[The Chair, Liberal, Francis Scarpaleggia]

Unfortunately, your time is up, Ms. Pauzé, but you may have an answer later.

Ms. Collins, you now have the floor.

[Laurel Collins, NDP, Victoria, BC]

Thank you, Mr. Chair.

I have questions for Ms. Vega Cardenas as well, but my first question is for Mr. Behn.

You talked a lot about the complexity of the challenges that we're facing and that we are going to be facing in the future and a little bit about how indigenous law will play a role in what's to come.

I'm wondering if you could talk a little bit more about how you see the future of indigenous law interacting with the laws that we have to protect fresh water and the laws that might be potentially doing damage or harm.

[Caleb Behn]

Section 5 of the federal UN declaration implementation legislation has a positive obligation on Canada to implement and align its laws and policies and regulations with the UN declaration, so that alone is a positive obligation that requires, in my view, proactive engagement.

There is a retrospective component to this, which is like laws on the books that we need to deal with, laws in development and laws forthcoming. My view is that—and this is the core submission—I propose that this committee and the courageous leadership around this table could theoretically advocate for some kind of incubator space that facilitates and supports the homegrown, homespun. As Mr. Orb pointed out, local people know.

It is my view that indigenous laws and legal order is because we have a very different relationality to the non-human because we view and interface with these non-human entities as having agency, as having breath, as having spirit, as having profundity.

Science is catching up increasingly and weirdly with the support of artificial intelligence and machine learning systems that are recognizing the voice of nature, as put forward by my late mentor and dear friend, the late Dr. Karen Bakker.

I think that what you're going to see, and what I encourage, is a push towards support of these emergent constructs.

To committee member Pauzé, your question relatedly.... I think in the emergent constructs in certain jurisdictions, whether it's Saskatchewan or Quebec or anywhere else that has municipal first nations and other alignment structures, you are likely to find the necessary solutions that then have to be scaled.

My question for the group is: Who else but the federal government can functionally scale horizontally or laterally in this system?

It is upon you, with the utmost respect, to scale and scale quickly. I think that is where first nations...because we don't necessarily disrupt co-operative federalism. We don't necessarily disrupt the complexity of the 91-92 relationship, and yet stand adjacent to and loyal to.... I'm Treaty 8 on both sides. We've been loyal since 1899, even though my dad went to residential school, even though my people and I have been violated time and again by provincial and federal and municipal powers. We stand with you committed to this thing that is Canada. I think that is where the utility that we need in the 21st century will be found, and that's my admonition to you.

[Laurel Collins, NDP, Victoria, BC]

Thank you so much for that.

I'm reminded that there are 32 calls to action in my community where there's the Victoria municipal government alongside the City Family, which is made up of the Esquimalt Nation, the Songhees Nation and urban indigenous folks. They put out 32 calls. The first six of them are on acknowledging the lands and water. One of them is, in particular, around establishing areas of Victoria that acknowledge the lands and waters as having rights and privileges as entities in and of themselves.

Can you talk a little bit more about that future you see with the relation to the non-human?

[Caleb Behn]

In that context, you're on the breakwater. I went to law school at UVic, so I know a bit about that territory. I had the privilege and honour of being in that space.

In 20 years, an indigenous language coder and allies will go to the breakwater and talk in dialogue with orcas and salmon to inform the source water protection structure up above Victoria. For people who don't know, the source water is above the cities. There's a source water protection area. Through machine learning systems, analytics, ceremony, spirit involving the academics— Victoria is a small city, a capital city, but has a lot of academics per capita—visions, interfaces with the municipality, the province, and the federal government, insights will be offered into source water protection systems which will inform and engage the non-human on a proactive basis.

Isn't that a future that Canada should aspire to? We would inspire the world. The reason is Canada has the sophisticated infrastructure. We have the sophisticated analytical capacities that other countries do not. We have the legal capacity. We're a multi-juridical jurisdiction. We already have UN declaration legislation in B.C. at the municipal level in Victoria and at the federal level. We are optimized to do something no one has ever done.

That's my vision. I don't have the technical or coding capacity quite yet to do it, but that might be something we could aspire to.

[The Chair, Liberal, Francis Scarpaleggia]

We have to stop there, Ms. Collins.

It's very interesting, because the University of Calgary is setting up an environmental prediction centre. It sounds a lot like what you're referring to. Representatives from that institution will be appearing.

We have time for a truncated second round. What I would propose is basically two minutes each with one minute for the NDP and Bloc. I'm a bit flexible, so just a few zingers in there, and then we can go on to the second hour with our second panel.

Mr. Deltell, you have the floor for two minutes.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Thank you very much, Mr. Chair.

Ladies and gentlemen, welcome to the House of Commons. Your testimony is very interesting.

Mr. Behn, I don't have much time, but I can tell you that you've been very inspiring to all of us, and I thank you very much for your testimony.

Ms. Cardenas and Ms. Delage, in the past I was a journalist and member of the National Assembly in Quebec. There was a lot of talk about the price of water, particularly with regard to the bottles of pure water that are sold just about everywhere.

I know you want to give water legal status, and that's fine. In your opinion, should water have a price?

[Yenny Vega Cardenas]

I've always been against the massive export of water.

Water has a lot of value, but it has no price. Water is an essential resource and it must always be attached to the environment, to its surroundings.

There's also the question of royalties—I'm thinking, for example, of bottlers. The issue was raised in Quebec, but is now being resolved. It's only normal that people who profit from water should pay something back to the community, because they're exploiting a common, collective resource. So it's only right that this wealth should be redistributed. At present, those who exploit the resource get off lightly, whereas it is normally a common good.

In my opinion, the question of royalties is more a matter for the provinces.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Yet there's a difference between the person who uses water to bottle it and sell it and the farmer who uses water for his agricultural production.

What's your position on this?

[Yenny Vega Cardenas]

With regard to the issue of water use in agriculture, I don't think the problem is price, but rather water contamination. The quantity of products used leads to contamination of the water used for irrigation, and this contaminates rivers.

There's also the fact that farmers cultivate land right up to streams and rivers. They don't respect the riparian strips. Erosion sets in, and a lot of sediment ends up in the St. Lawrence River. This costs Canadians a lot of money, because rivers have to be dredged. We're not taking care of the watershed.

It's with this holistic vision that we appeal to you today. We need to look at things on a Canada-wide scale.