Indigenous and Northern Affairs Committee on Sept. 23rd, 2024

[The Chair, Liberal, Patrick Weiler]

Welcome to meeting number 119 of the House of Commons Standing Committee on Indigenous and Northern Affairs.

Pursuant to the order of reference of Wednesday, June 5, 2024, the committee is resuming consideration of Bill C-61, an act respecting water, source water, drinking water, waste water and related infrastructure on First Nation lands.

We recognize that we are having this meeting today on ancestral and unceded territories of the Algonquin Anishinabe people. That's very relevant today, because we are very fortunate to have some excellent witnesses to provide testimony for this work.

I want to welcome our witnesses to our panel. From the Anishinabek Nation, we have Grand Council Chief Linda Debassige; from the Chiefs of Ontario, we have Grand Chief Abram Benedict and Irving Leblanc; from the Cowessess First Nation, we have Chief Erica Beaudin.

From the Nishnawbe Aski Nation, we have Deputy Grand Chief Anna Betty Achneepineskum; Michael McKay, director of housing and infrastructure; Jamie Saunders, infrastructure adviser; and Maheegan Armstrong, legal counsel.

To start, we will have a round of introductions of five minutes for each of the four organizations here, starting with Linda Debassige.

I'll hand the floor over to you, for five minutes

[Linda Debassige, Grand Council Chief, Anishinabek Nation]

Chair, this is my first time at committee. When you say introductions, is that an introduction about me, or my statement?

[The Chair, Liberal, Patrick Weiler]

Pardon me, I should have been more clear.

There are five minutes for you to provide introductory remarks, and you may use that five minutes as you see fit.

[Grand Council Chief Linda Debassige]

Thank you.

Aaniin, boozhoo and good afternoon. My name is Linda Debassige and I am the grand council chief of the Anishinabe Nation. I'd like to acknowledge that we are gathered on the unceded territories of the Algonquin people.

I'm honoured to be here today to speak about the urgency and importance of safe water and wastewater legislation for first nations across Canada. I was born and raised in M’Chigeeng First Nation along Lake Huron, and I was elected to my council in 2013. I was chief in my community from 2015 to 2023. In 2024, I was elected grand council chief of the Anishinabe Nation.

The Anishinabe Nation represents 39 first nations in Ontario. Our communities have always maintained their inherent right to water since time immemorial, including their right to clean, safe drinking water. Our communities continue to maintain that their ancestors have never ceded the water to any settler nation and maintain they are stewards of the Great Lakes.

I would like to begin by reminding each of you about the importance of and urgency of legislation to address long-standing water and wastewater issues in first nations communities across this country. I would like to point out to this committee that the statement in clause 30—under the heading “Obligations of Government of Canada”—to “make best efforts to provide” is unacceptable and very weak. It should be replaced with “will provide”. This “make best efforts” speaks to colonial commentaries of the past. We have heard this time and again in many of the failed promises of the past. It is time that you do better.

Here in Ontario, the nations I represent continue to fight every day for basic human rights, including to safe, clean drinking water. This fight should be our fight, since we are in this together as treaty partners. The failure to deliver this right to safe drinking water in this day and age is simply disgraceful. I think especially of our ancestors, who, at one time, could drink the water freely and without having fear for one's life.

I am here to remind each of you of the responsibility we have, collectively, to first nations people, children, elders and those yet to be born. This legislation is important. It is urgent. We cannot wait any longer. As you all know, after the enactment of the Safe Drinking Water for First Nations Act in 2013, we consistently asked Canada to repeal the legislation. This act was brought into force without any consultation, or funding commitments to implement it, or engagement with first nations regarding our inherent and treaty rights and jurisdiction to make laws about water. The act was heavily criticized for lack of meaningful engagement and consultation with first nations, inadequate resources to implement the regulations and increased liability to first nations. Since 2018, first nations organizations, including the Anishinabe Nation, have advocated for strong legislation that protects first nations rights and honours our relationship with water. We've advocated for more robust protections and for the right to be recognized as stewards and decision-makers.

I want to take a moment to acknowledge Chief Moonias from Neskantaga First Nation, Chief Spence from Tataskweyak Cree Nation and Chief Emerita Whetung from Curve Lake First Nation for their tireless efforts to bring the class action forward that ultimately compelled Canada to repeal the Safe Drinking Water for First Nations Act of 2013.

Since the repeal of the act in June 2022, drafting of the replacement legislation was guided by a working group tasked with a process for new legislation. I was honoured to be part of that team and co-led it with former members of first nations. I was also honoured to co-lead that team with former National Chief Phil Fontaine. Although no process is perfect, the work between the Assembly of First Nations and ISC laid a foundation for a more inclusive process. Through this process, with representatives from ISC and AFN, we worked to advance legislation. Although this was not true co-development through our world-view lens, it was an opportunity to continue to advocate for first nations and make positive impacts at home and for our people.

This legislation is important. It's passing a critical step towards addressing decades of harm towards first nations that was rooted in colonialism. I believe that, with a few key changes, this legislation will allow first nations to finally have a guaranteed chance to access clean, safe drinking water and wastewater treatment.

Canada's obligation needs to go further, as I have previously mentioned. The legislation affirms the inherent right to self-government that is recognized under section 35 of the Constitution Act 1982, which includes the jurisdiction of first nations in relation to water, source water, drinking water, waste water and related infrastructure on, in and under first nations lands.

It acknowledges our relationship with water and recognizes that we have the right and jurisdiction to make our own decisions and laws in relation to water, source water, drinking water, waste water and related infrastructure.

It allows for the creation of standards and regulations. This is so important. As of right now, first nations do not have enforceable regulations in place.

It also allows for the creation of a funding framework in an urgent manner, moving away from decades of formula-based funding and towards a funding mechanism that recognizes the actual costs of building, maintaining and managing drinking water and wastewater systems.

Moreover, it allows for the creation of a first nations water commission, something that we have been discussing for many years. These are all critical components and cannot be overlooked as important elements of this legislation.

I believe the legislation can be strengthened in a few areas that will ensure that first nations are protected. Stronger language can help protect first nations no matter what political party is in power.

I believe this legislation must be bipartisan; we cannot use first nations and this bill as pawns in a political fight.

First nations today and in the future look to you to do the right thing and make recommendations to ensure that this legislation has the support to include the rights provided for in UNDRIP; under Section 35 of the Constitution Act, 1982; and in UN Resolution 292 , which recognizes the human right to water and sanitation.

The creation of protection zones must recognize first nations' inherent rights as well as their jurisdiction within their respective territories. I am recommending a rights-based approach to ensure our rights and unsurrendered interests are protected.

Every element of the legislation should have a time limit imposed to ensure that we don't continue to drag this matter on for another decade or more. Enacting Bill C‑61 will mark a critical step towards securing the right to clean and safe drinking water and wastewater management for first nations and recognizing it as both a human right and an essential service. Bill C‑61 is an important milestone in a decades-long fight for adequate water and waste water in first nations across this country.

This is an opportunity for Canada to finally do right by first nations. The consistent failure of the Crown to resolve inherent rights over time has compounded the complexities in relation to water. However, you have an opportunity to be closer to the right and just side of society today. By addressing first nations' concerns, Bill C‑61 can pave the way for a future in which first nations children grow up without water advisories and their nations can thrive.

I cannot stress enough that the passage of this legislation is important, timely and critical to protecting first nations health and the well-being of our people, our elders, our children, our grandchildren and those yet unborn. We cannot afford to wait any longer.

Thank you. Meegwetch.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Grand Council Chief.

Next, I will turn the floor over to Chief Erica Beaudin to deliver five minutes of introductory remarks.

[Chief Erica Beaudin, Cowessess First Nation]

First of all, good afternoon, and thank you for asking me to witness today. My name is Erica Beaudin. I am chief of the Cowessess First Nation. We are the largest first nation in Treaty 4 territory, with 4,700 members or citizens.

Before I came to Ottawa—and I say Ottawa, but I acknowledge that we are on the unceded lands of the Algonquin people—I put down medicines in our waters while I prayed for all of us to have open minds, hearts and spirits as we look at the possibilities of the inaction of Bill C-61.

Water is alive. Water is life. None of us, not one of us, whether we are indigenous or not, can exist without clean drinking water. The social determinants of health are also very important to consider when we look at aspects such as providing safer communities for our children. There are several bills that are before Parliament right now, and to think that Bill C-61 sits in isolation and isn't connected to other bills means that it does not look at the interconnectedness of what it takes for our nations, our communities, to deliver proper living conditions for our people.

Bill C-61, the first nations clean water act, represents a significant step forward in affirming the rights of first nation communities to self-governance over water resources on our lands. It is a positive development in recognizing that first nations have the inherent right to manage our water, our own water, source water, drinking water and wastewater infrastructure. This legislative framework seeks to ensure that first nations have access to clean and safe drinking water, a long overdue commitment given the historical neglect and challenges faced by many indigenous communities in Canada.

The bill outlines several promising aspects, such as the creation of rights-based regulatory pathways in collaboration with first nations, other federal ministers and provincial governments. These pathways are designed to protect water sources adjacent to first nations' lands and to protect a legal structure for first nations to exercise control over water resources on our territories. This is an important recognition of self-determination and aligns with the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples.

While the act is a step in the right direction, there are limitations that must be acknowledged. Funding is always a primary concern with anything related to first nations, and we need certainty to ensure that this legislation has long-term impact and enables predictability of resources to address the deep-rooted issues surrounding water quality and infrastructure. While the legislation speaks to best efforts to provide adequate and sustainable funding for water services, I believe we could strengthen that language to further strengthen the bill.

The other point I'd like to briefly touch on is the requirement for first nations to collaborate with provincial governments on protecting source water, which would present challenges. I can only speak from my experience as a chief from Saskatchewan, but on behalf of our nation in our fight for the sovereignty and jurisdiction over our traditional lands and waterways, I have seen and experienced first-hand the jurisdictional conflicts, unhelpful provincial actions and lack of rights recognition that complicate efforts to safeguard water quality on first nations lands.

I understand that there is a federal need for intergovernmental cooperation, but I would be remiss if I did not flag how that may hinder the timely implementation of protections that are crucial for ensuring safe drinking water for our communities. The criticism from some indigenous groups that the bill's “best efforts” clause is insufficient cannot be overlooked. The lack of a binding legal commitment to provide safe and clean drinking water, coupled with the absence of a clear mechanism for enforcement, means that the bill may not fully address the systemic issues it aims to solve.

Bill C-61 is a necessary and positive step towards recognizing first nations' rights to self-governance and ensuring clean water access. However, like any legislation, it can become stronger with amendments. I believe that with clearer tools, such as a commitment to predictable funding, coupled with mechanisms to support first nations in dealing with unaligned provincial governments, this legislation will protect water for all our generations yet to come.

The time is now for Bill C-61 to come into force.

Thank you very much.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Chief Beaudin.

Next up, I will turn the floor over to the Nishnawbe Aski Nation. I believe Deputy Grand Chief Anna Betty Achneepineskum will be providing five minutes of opening remarks.

[Deputy Grand Chief Anna Betty Achneepineskum, Nishnawbe Aski Nation]

Yes. Thank you very much.

Wachiye, boozhoo.

My name is Anna Betty Achneepineskum, and I serve as the deputy grand chief for the Nishnawbe Aski Nation.

First of all, I want to thank you for inviting us to make a presentation to the committee on its study of Bill C-61, an act respecting water, source water, drinking water, waste water and related infrastructure on First Nation lands. I want to acknowledge that this committee meeting is taking place in Ottawa, an unceded and unsurrendered territory of the Anishinabe Algonquin nation, whose presence there reaches back in time immemorial.

The Nishnawbe Aski Nation is composed of 49 first nations communities, most of which are signatories to Treaty 9 in the Ontario portion of Treaty 5. Treaty 9 is unique among the historical treaties because it was an agreement signed by first nations with Canada and Ontario. We also state that the people of the Nishnawbe Aski Nation are a sovereign people with sovereign and inherent rights by virtue of being the first peoples of their lands.

As of September 23, 2024, today there are 13 long-term drinking water advisories within 12 of the Nishnawbe Aski Nation communities, including my home community of Marten Falls. There are nine drinking water advisories that have been in place for less than a year.

There are nine communities that have difficulty accepting that treated water is safe to drink, even once drinking water advisories have been lifted. We have to ask ourselves why. A lot of that is because of the trauma associated with and the health impacts of the lack of safe water.

NAN has submitted a briefing to the advisory committee, the text of which is available on the Crown-Indigenous Relations and Northern Affairs website. NAN chiefs have not endorsed a formal position on Bill C-61, but believe that several amendments could be made to strengthen the wording in the bill. The amendments recommended by the Nishnawbe Aski Nation include ensuring that Bill C-61 is binding on the Crown; ensuring that Bill C-61 is worded so that first nations laws also have the force of federal laws; and ensuring that adequate, long-term funding provisions are provided in Bill C-61.

Bill C-61 does not provide a clear framework for the government on source water protection zones, leaving it ambiguous as to who has the ultimate authority over the establishment, management and enforcement of these zones.

In the remaining time I have, I would like to ask our legal counsel, Maheegan Armstrong, to speak a bit more about the suggested changes to Bill C-61 that are outlined in the brief submitted by the Nishnawbe Aski Nation.

[Maheegan Armstrong, Legal Counsel, Nishnawbe Aski Nation]

Hello. I'm Maheegan Armstrong. I'm a lawyer representing Nishnawbe Aski Nation.

I'm going to very quickly go through some of the amendments and the rationale behind them.

In the briefing note, we made two pretty big suggestions. One is to make sure that the law-making sections, where it talks about jurisdiction, are binding on the federal Crown. The other is to make sure that first nation laws have the force of law as federal law.

These are both used in tandem to make sure that the law-making sections of Bill C-61 are strengthened and there's a bit more certainty.

The reason why we're suggesting these is in light of a new Supreme Court of Canada case that came out in February. It was the reference case to the Act respecting First Nations, Inuit, and Métis children, youth and families that came out. The decision was rendered on February 9, which was after this bill came into the House of Commons.

We've incorporated some of that guidance from the Supreme Court of Canada case. We want to strengthen some parts of this bill with that guidance from the Supreme Court.

Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you very much.

For the awareness of committee members, Grand Chief Abram Benedict will be joining us in a short while. We'll give him an opportunity to provide opening remarks at that point.

This concludes the introductory remarks section.

We will move into our first round of questioning, which is a six-minute round.

Starting with the Conservative Party, we have Mr. Schmale. I'm sorry, it's Mr. Melillo.

Please go ahead. You have six minutes.

[Eric Melillo, Conservative, Kenora, ON]

Thank you very much, Mr. Chair.

You tried to give my speaking time away. I appreciate it.

Thank you to all the witnesses for being here to speak to this important piece of legislation. I very much appreciate it.

I will start with the Nishnawbe Aski Nation and the deputy grand chief.

When the bill was introduced, Grand Chief Fiddler said in a press release, “We acknowledge that some First Nations have had opportunities for input into the drafting of this legislation, but we do not agree that this legislation has been co-drafted.”

Can you describe the process that NAN has had in the development of this legislation and why that conclusion was made?

[Deputy Grand Chief Anna Betty Achneepineskum]

Thank you, Member of Parliament Melillo, for that question.

I do have a copy of that statement that was presented by Grand Chief Fiddler at that time.

I'm going to turn it over to our legal counsel to respond.

Thank you.

[Maheegan Armstrong]

Can you rephrase that question, please?

[Eric Melillo, Conservative, Kenora, ON]

The question is about the involvement that NAN had in the lead-up to this. The statement by Grand Chief Fiddler indicated that although there are opportunities for input into the drafting, the Nishnawbe Aski Nation does not agree that the legislation has been co-drafted.

I'm just curious as to what that process was like in terms of the involvement of NAN.

[Maheegan Armstrong]

The drafting process took place over about a year. What sort of ended up happening at that time, from my understanding, was that there was an NDA with some of the parties that were doing the drafting. NAN wasn't a part of that. That would probably reflect, at that point in time, that there were periods of time when there was no input other than from the parties that were party to that NDA that were doing the drafting.

[Eric Melillo, Conservative, Kenora, ON]

I appreciate that.

Thank you.

I'll ask a question of Grand Council Chief Linda as well, who is in the room.

I believe you said in your opening remarks, if I heard you correctly, that this was not true co-development.

Would you like to expand on that? Do you have a similar view as the Nishnawbe Aski Nation?

[Grand Council Chief Linda Debassige]

Meegwetch for the question.

I want to respond in the kindest of ways. You are an MP in the House of Commons. There are certain, I would say, legislative privileges that comes with that role and, really, to any party that is in power at the time. I believe that, through the process instituted by Canada and that of the Parliament, cabinet privilege is one of them. My understanding of cabinet privilege is that there are conversations that happen, mandates are given, and that is in absolute isolation of any first nation person or community across this country.

When I look through our world view lens of co-development, it requires an understanding of a collective goal, and working towards that goal without any hindrance. Obviously, I also shared in my statements that the lack of access to clean, safe drinking water is a symptom of colonialism that started hundreds of years ago and through those processes. I feel that, in this particular process, the AFN Chiefs and assembly did provide a resolution and mandate to move forward with a process, with Canada, to develop replacement legislation, as ordered by the court.

In my experience, firstly, as a councillor in my community, part of that process were heavy engagements with the Chiefs of Ontario at the time. That fed into the AFN. The Assembly of First Nations continued advocacy and pushes, so resolutions developed over time. As a chief I participated in many engagement sessions surrounding the safe drinking water legislation across the province of Ontario, and what we created at the AFN through those development processes since 2018 were 29 preliminary concepts that were provided to Canada. To give you some context to my response, in terms of co-development, it's what lens you look through and what is mandated through cabinet privilege.

[Eric Melillo, Conservative, Kenora, ON]

I appreciate that. Thank you.

Just very quickly, I'd like to ask one more question if I could, Chair.

I come back to Nishnawbe Aski Nation. It was mentioned, in opening remarks by a few folks here, that some of the wording in this legislation is that the minister “must consult and cooperate” before moving forward with regulations. Do you have a view on that type of legislation, whether it's strong enough or whether it should be amended going forward?

[The Chair, Liberal, Patrick Weiler]

It has to be a very brief answer.

[Maheegan Armstrong]

I can respond to that.

You're talking about “consult and cooperate”, which is throughout multiple provisions in that. Is that right?

[Eric Melillo, Conservative, Kenora, ON]

That's correct, yes.

[Maheegan Armstrong]

I would say, from a legal standpoint it does require consultation and co-operation, which might be undefined from a legal standpoint. In my view, it kind of remains to be seen how that is implemented, which I think speaks largely to the entire legislation. I think implementation is going to be one of the bigger pieces....and see how that rolls out.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Melillo.

We go to our next questioner here, who is....

I'm sorry.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Do you want to give Mr. Benedict a chance?

[The Chair, Liberal, Patrick Weiler]

Oh, yes.

It's our great pleasure to welcome our last witness joining us today. We have Grand Chief Abram Benedict, the Ontario regional chief.

I'm sorry to put you immediately on the spot here, but I give you the opportunity to provide five minutes of opening remarks.