Indigenous and Northern Affairs Committee on Oct. 7th, 2024

[The Chair, Liberal, Patrick Weiler]

I call the meeting to order.

Welcome to meeting number 122 of the House of Commons Standing Committee on Indigenous and Northern Affairs.

As always, I want to start by recognizing that we are gathering on the ancestral and unceded territory of the Algonquin Anishinabe people, and I want to express gratitude that we're able to do the important work of this committee on lands they've stewarded since time immemorial.

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.

Just so colleagues know, we have invited a number of different governments to present to our committee, but we've been unable to find a time for them to attend. Rest assured we have sent invitations to six different governments, and I think we will be getting some briefs.

With that, I would like to welcome our witnesses here today.

From the Alberta Wildlife Federation, we have CEO Kelly Carter. From the Mohawk Council of Kahnawake, we have Grand Chief Cody Diabo, joining virtually, along with Katie Spillane, legal counsel. In person, from the Six Nations of the Grand River, we have Chief Sherri-Lyn Hill here with us, along with Mr. Greg Frazer.

With that, we're going to go to the opening round of statements. Each witness will have five minutes for an opening statement, after which we will proceed with rounds of questions. We'll start online with Grand Chief Cody Diabo.

With that, I'll turn the microphone over to you for five minutes or less.

[Grand Chief Cody Diabo, Mohawk Council of Kahnawake]

Shé:kon sewakwé:kon!

I am Grand Chief Cody Diabo with the Mohawk Council of Kahnawake. The Mohawk Council of Kahnawake thanks the committee for the invitation to make submissions regarding Bill C-61, the first nations clean water act. We thank you for this opportunity, since the consultation process—like so many consultations, stating it frankly—are quite abysmal.

The MCK stands with indigenous peoples across the land who struggle for clean water. However, we oppose Bill C-61, which reproduces Canada's flawed positions on the inherent governance rights of indigenous peoples and limits Kahnawake's right to govern waters in our own backyard. The Kanienkehaka of Kahnawake have been self-governing since time immemorial. We exercise our inherent right to self-government in accordance with Haudenosaunee law, not with any delegated authority.

The watersheds of the St. Lawrence Valley have always sustained our community and our people. We fish, hunt and trap, harvest food and medicines, camp, canoe and raise our families on these waters. We have a deep connection to them. They are an integral part of our culture and our society.

It is the Kanienkehaka of Kahnawake, and no one else, who protect the waters that sustain us and who decide how our water treatment services will be managed.

Our main objection to Bill C-61 is that it pretends to affirm our inherent right of self-government in relation to water while attempting to subordinate our laws to federal legislation. The primary mechanism for this is clause 8 of the bill, which is offensive for two reasons.

First, clause 8 reinforces Canada's paternalistic posture by subjugating indigenous jurisdiction to a generic suite of federal laws. This is unacceptable. Indigenous jurisdictions are not based on or constrained by Canadian law. It cannot be artificially limited to areas of jurisdiction that are considered integral to distinct indigenous cultures. The MCK did flag this in the very limited consultation that took place before the bill was tabled—like so much other legislation that is out there that we provide comment to.

Second, to add insult to injury, when we saw the next draft of the bill—the one that's before you—the MCK was outraged to see that additional laws had been added to clause 8 without any consultation whatsoever. The Canada Marine Act and the Canadian Navigable Waters Act have huge implications for governance of the St. Lawrence Seaway, which runs directly through our territory.

Including these laws in clause 8 seems to single out Kahnawake and attempts to severely limit our ability to govern our own waters. It is wildly contradictory with Bill C-61's stated purpose to recognize that protecting the waters we drink requires recognizing our rights to protect those waters ourselves.

The MCK has actively called out the exclusion of Kahnawake from any participation in the governance and stewardship of the St. Lawrence River and the Seaway. In the context of Parliament's consideration of Bill C-33, we ask you to amend the Canada Marine Act to include the recognition and protection of our rights—on your end, that is. The MCK has also repeatedly requested changes to Seaway governance to honour our right to participate in governance of these crucial waters that are firmly within our territory. Our concerns have been met with total silence, as I pointed out, like so many others have.

True reconciliation requires Canada to stop trying to govern over us and over all aspects of our territory. The sooner Canada realizes that it does not have jurisdiction over first nations peoples, the sooner we can have true reconciliation.

While the MCK fully supports ensuring all indigenous people have access to clean water, we oppose the inclusion of Seaway-specific legislation in Bill C-61 and strongly caution Canada against a piecemeal approach to extracting itself from what is rightfully our jurisdiction.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Grand Chief Diabo.

Next, I'll be turning the floor over to Chief Sherri-Lyn Hill for five minutes.

The floor is yours.

[Chief Sherri-Lyn Hill, Six Nations of the Grand River]

Nia:wen. Thank you for the opportunity to comment on Bill C-61.

My name is Sherri-Lyn Hill. I am the chief of the 59th elected council of Six Nations of the Grand River territory. It's the most populous first nation in Canada and is located a short drive from Toronto, Ontario.

Please note that a written submission was prepared in support of my commentary. I will refer to my community as SNGR or Six Nations from this point forward.

It blows my mind that in 2024, in a G7 country, legislation is required to provide safe drinking water for first nations, but here we are.

With respect to water equality, there are different standards in this country. First, the Canada Water Act manages water resources for the benefit of all Canadians. This act is binding on His Majesty. Second, Ontarians have access to drinking water with source and tap protections and legally binding test standards. Then we have Bill C-61, which introduces non-binding legislation that promises “best efforts”.

This is a slap in the face. No wonder first nations often turn to the courts to pursue federal accountability for their issues. SNGR has fought for access to safe drinking water for decades without success. Most of the Haudenosaunee of Six Nations have relied on unprotected ground-source drinking water since the lands were granted to us by the Haldimand Treaty in 1784.

The federal government has had knowledge of unsafe water at Six Nations for decades. The first community water system, which serviced 11% of households, had contamination issues that led to boil water advisories in 1990. In 2022, Six Nations Health Services released a report on water testing from 2003 and 2022, which revealed that water safety issues remain an ongoing problem. It will take 30-plus years to provide water services to on-reserve members.

Access to safe drinking water is a necessity for all life. No human, plant or animal can survive without it. The lack of access to safe drinking water profoundly impacts quality of life. Nearly 2,000 elderly members living on my reserve have spent most of their lives hauling water for their families. Some of them, in their eighties, continue to climb trucks at a fill station.

It was hoped that Bill C-61 would go beyond the status quo.

The Auditor General of Canada said, in a 2021 report that “Indigenous Services Canada did not provide the support necessary to ensure that First Nations...have ongoing access to safe drinking water.” Furthermore, the report noted that ISC “had not amended the operations and maintenance funding...for First Nations water systems since it was developed 30 years ago.”

There are many aspects of this legislation that are concerning. The repeat use of the phrase “best efforts” does not bind the Government of Canada to action. To successfully achieve the purpose of the bill, several amendments are necessary.

Firstly, consultation must comply with first nations consultation and accommodation policies. Next, the definition of “First Nation governing body” must reference the legally recognized government.

Bill C-61 must ensure that first nations are guaranteed access to safe drinking water that meets all current and future needs. Bill C-61 must require the achievement of outcomes. It must also provide for quantities of water that meet economic and cultural needs. It requires Canada to provide adequate funding for water services and it must ensure all first nations have access to binding dispute resolution.

There are other areas that require strengthening to ensure the inherent rights of first nations are upheld—the rights, I add, that first nations never gave up.

Again, nia:wen. Thank you for the opportunity.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Chief Hill.

With that, we are going to move over to our third and final witness for opening remarks.

Mr. Carter, I'll turn the floor over to you for five minutes or less.

[Kelly Carter, Chief Executive Officer, Alberta Wildlife Federation]

Thank you, Chair and committee members, for the invitation to speak with you today.

I'm Kelly Carter, the chief executive officer of the Alberta Wildlife Federation.

Today, I'm a visitor speaking to you in Ottawa from the unceded Anishinabe Algonquin territory. I reside and live in Edmonton, which is in Treaty 6 territory. The Alberta Wildlife Federation honours all first nations, Inuit and Métis people and their valuable contributions to this land.

The Alberta Wildlife Federation is an organization that represents over 16,000 members from diverse backgrounds who are brought together by their love of hunting, fishing and exploring the outdoors. Water is an integral part of our communities. We love to live, work and play in it.

Firstly and importantly, I want to reinforce our support for the human right of access to safe, clean drinking water and the sanitization of waste water. As a human right, it applies to all people, with no exceptions. We appreciate the effort being made to improve drinking water quality, specifically on first nation lands in Canada. This is long overdue.

After reading Bill C-61, the Alberta Wildlife Federation would like to share some thoughts and perspectives with the committee. We support the intent of Bill C-61 to address and improve drinking water for those living on and visiting first nation lands. Access to a reliable stream of safe, clean drinking water is essential.

The term “source water” appeared multiple times in the bill, but without a definition. We have some concerns about how this could be used in the implementation of the act and the resulting impact it could have on our recreational outdoor communities. This comes up in paragraph 5(1)(b), which reads, “the effective management and monitoring of all stages of water services delivery, from the protection of source water”.

What does this protection mean? There could be a wide interpretation of this, and vast consequences for those who enjoy angling in our rivers and lakes, along with all Canadians who want to explore our waterways on paddleboards, kayaks and watercraft.

Upon review of the bill, we were left unsure what a source water “protection zone” is, along with what impact it would have if one was declared. Clause 29 states that first nations law must “protect the environment as much as or more than” current regulations listed in the bill. This needs to be in collaboration with all levels of government when it impacts any water that is not located on first nation lands. The creation of a first nations water commission is good, but again, we note that it includes a section on source water protection plans. The Government of Canada, along with provincial governments, has a role to play in this responsibility when it comes to source water.

The more we read the act, the more it became evident that source water protection is a recurring theme that is broad and without definition. Why are we concerned about this? Because it commonly shuts down access for hunting and fishing and reduces opportunities.

I want to emphasize that water is for all Canadians to enjoy, access, drink and explore. Bill C-61 could present challenges if access were restricted to water bodies and if fishing opportunities were eliminated, restricted or further controlled. We want to know what guardrails are in place to protect these interests.

We are worried and concerned that the use of source water protection clauses in this act go beyond the intent of what is needed to provide safe drinking water. Any discussion involving that source water should include everyone, as we all have a stake in water management.

I want to reinforce that fishing, hunting and trapping communities contribute $13.2 billion in Canada's GDP, $18.9 billion in direct spending and 107,000 Canadian jobs with an estimated labour of $6.4 billion. That's based on a Conference Board of Canada report from 2019. In Canada, we have 2.9 million licensed anglers, and recreational fishing brings $10.3 billion to our economy. Nine in 10 Canadians support hunting, fishing and trapping, according to Nanos Research.

Water is also critical to our tourism industry, which requires access to water for recreational purposes as well. Think of all the rafting tours, fishing guides and hikers who want to experience this vast natural resource.

I paint this picture because access to outdoor areas to participate in these activities is essential. It comes back to the impact of protecting source waters and what that means for implementation. How this bill will be interpreted and the economic risks that could result concern us. We need federal guardrails in place to protect these interests. Anything to do with source water or the protection of source water must be done in a collaborative manner that respects provincial authority and the interests of all Canadians.

In summary, we respect the human right to safe, clean drinking water and the sanitization of waste water. We are concerned by the use of the term “source water” throughout the bill and its inclusion in a first nations water commission regarding how it could impact recreational communities, and we are concerned by the lack of guardrails within the bill.

Thank you for your time today and for allowing me to address the committee on this important matter. I hope all first nations communities are able to access healthy, safe and clean drinking water as soon as possible.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Carter.

With that, we're going into our first six-minute round of questioning, starting with Mr. Zimmer for the Conservative Party.

[Bob Zimmer, Conservative, Prince George—Peace River—Northern Rockies, BC]

Thank you, Mr. Chair.

Thank you, witnesses, for coming all the way to Ottawa.

We've already seen a lot of closures across the country, like caribou closures. I'm from the northeastern part of British Columbia. We've seen potential closures, too, on the west coast—fishing and other closures. British Columbians are very aware of closures, because they've affected us already, personally.

Hunting and fishing organizations have a lot of questions about source water and the associated protection zones referenced in Bill C-61, as you do. According to clause 21(1), defining what a protection zone is.... It actually doesn't define it. It's whatever the minister says it is. I think that becomes the question. Meaning depends on whatever the minister sitting in that chair decides and then applies. Then people will be shut out from their ability to fish and hunt in areas they've long fished and hunted in. There's a misconception that people just do it for fun, but it's often for sustenance. You probably have a lot of friends who fill up their freezers to survive the winter, whether it's arctic char, moose or deer. It's about feeding our families.

Do you share those concerns about all Canadians' potential loss of access to hunting and fishing areas?

[Kelly Carter]

Absolutely. That's the primary concern among our members and what they've been experiencing, as you identified already, with regard to protected areas being put in place. A reduction in access means fewer people who want to fish and hunt.... It impacts food security, as well.

[Bob Zimmer, Conservative, Prince George—Peace River—Northern Rockies, BC]

I will give up my time and pass it over MP Melillo.

[Eric Melillo, Conservative, Kenora, ON]

Thank you, Mr. Chair.

Thank you, Mr. Zimmer.

I'll pick up on that topic as well, just to keep things going there.

Thank you, all, for being here, by the way, for this important discussion.

All witnesses have raised concerns of some kind regarding this legislation. They also, of course, applaud the idea and motives behind the legislation. I think that's very important as well. Protection zones is one area that is very unclear and leaves much to the minister. The minister can make regulations without the consent of even the first nations, going forward.

I'll start with Chief Hill.

Do you also share those concerns about the minister having authority over first nations in terms of what the protection zones will be? As a follow-up, do you have ideas on what a protection zone should look like? We've asked many times over the course of this committee study what a protection zone is or should look like. Some folks don't know, or they have very different ideas.

[Chief Sherri-Lyn Hill]

I'm sorry. I lost you for a bit.

I'm going to ask Councillor Greg Frazer to respond.

[Dr. Greg Frazer, Councillor, Six Nations of the Grand River]

Thank you for that question.

In this bill, the minister has the right to make that decision. That concerns us quite a bit.

I will put the protection zones in a historical context. When we entered into Six Nations of the Grand River, we were given six miles on either side of the Grand River. We actually came from the American Revolution. We missed out on nine million acres because of the war. Therefore, we ended up in southern Ontario, right through the heart of southern Ontario, right through the economic engine of southern Ontario. We were given, in 1784, six miles on either side of that, and that included tributaries. It included from the mouth to the source, from Dundalk all the way down to Lake Erie.

Then over time, of course, as we all know, it was whittled away. We ended up going from 950,000 acres to 46,000 acres. However, on that six miles on either side of the Grand River, we still have the interest in that land and water. We still have various treaties that have clauses on hunting and fishing rights, such as the Nanfan Treaty. We often see that everything seems to be restricted. You'll probably bring up jurisdiction. We're talking about these protection zones.

Protection zones to us are where all of the sources of our water come to affect us. It's six miles on either side of the river. I grew up on the river. My house is on the river. However, we cannot rely on the minister to tell us how far out the tributaries come or how far out all of the land comes. We're actually still in a court case over this.

We have a court case that's going after the fiduciary land claim of almost a million acres. Within that million acres was our watershed and our protection zone. From a historical context, we have six miles on either side, which actually encompasses all of the tributaries, and now, we've lost that.

We get a little offended. It's offensive for the ministers to say, “Okay, you have the right to this much or that much”. That is our stand on that issue.

[Eric Melillo, Conservative, Kenora, ON]

Thank you. I appreciate that.

I think I'm running low on time. There's much more I wanted to get to.

Can I just ask a simple, quick question?

Chief Hill, you raised some amendments, obviously, in your opening remarks, but as the bill is written now, would you support it?

[Chief Sherri-Lyn Hill]

No, I would not, just because of the wording.

[Eric Melillo, Conservative, Kenora, ON]

Okay, I appreciate that.

Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Zimmer and Mr. Melillo.

With that, we'll be moving over to Mr. Battiste for six minutes.

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

Congratulations on your recent election, Chief Hill.

I wanted to talk a little about the wording around “best efforts”. I'm reading in the “Powers, Duties and Functions of Minister” where it says this:

The Minister, in consultation and cooperation with a First Nation governing body, must make best efforts to ensure that access to clean and safe drinking water

If you could replace that with an amendment, what wording would you suggest instead of “best efforts”?

[Chief Sherri-Lyn Hill]

I suggest “must provide” or “must ensure” so that it actually happens. It's not that it's a “best effort”, but that they actually must provide it or must ensure it.

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

Okay. We were talking about making the funding allocations. It's not just best efforts, but it has to go a step further. Is that correct?

[Chief Sherri-Lyn Hill]

Yes.

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

Yes. Looking at clause 27 and subclause 27(3), where it talks about the funding allocation decisions, it says:

The Minister’s consultations and cooperation with respect to the making of funding allocation decisions are to be guided by the principles that the funding for First Nations water services should

(a) be adequate, predictable, stable, sustainable and needs-based;

Do you agree with that in terms of moving forward? Would you agree with those principles, that they're important ones for communities to have?

[Chief Sherri-Lyn Hill]

Yes, but also, it's frustrating when operations and maintenance funding by ISC only covers about 50% of what is required at Six Nations, and it hasn't changed in 30 years.

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

I think that speaks to the second two things, and I'm glad you raised that because after that it talks about “be responsive to current and projected needs with respect to infrastructure” and “be responsive to infrastructure lifecycle planning related to local needs”.

I read that as the minister working with stakeholders to say we understand that there are going to be things that we need to do, and that's in that funding allocation so we're trying to figure out how do we strengthen this.

As someone who comes from a first nation community myself, a reserve of 5,000, our goal here is to ensure that first nation communities have access to drinking water with the principles that are laid out, but we know one-size-fits-all doesn't necessarily apply to everyone. You have a rather large community and there are some communities that have less than 200 people.

How do we get to a point where we're protecting all of the needs of either the large ones or the small ones with the same wording?

[Chief Sherri-Lyn Hill]

I'm going to ask Councillor Greg Frazer to respond.