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

[Dr. Greg Frazer]

I think we're talking about a commission as well, formulation of a commission. I don't think that's going to work in our respect because of the different sizes of first nations, because of the variability across Canada. It should be the input from the first nations that makes those decisions. I don't think it's really fair to compare us to someone, for example, in Shamattawa.

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

I think that's where, when we're talking about funding allocations and decisions, we're on the same page. We're just saying different things but in order to achieve the same objective. I appreciate that.

Chief Diabo, you said that the clause 8 laws are contradictory towards the laws, the inherent rights, of your community and your nation. Do you think that, if an amendment was to be provided where nothing in this act would abrogate or derogate away from inherent rights or treaty rights and that this legislation would be seen as affirming section 35 inherent treaty rights, it would be enough to balance your rights, your section 35 constitutional rights in your community, by ensuring that important legislation that already speaks to water exists knowing full well that section 35 paramountcy means that your constitutional rights would be put above any kind of legislation that was currently in this legislation?

[Grand Chief Cody Diabo]

My understanding is that's already in there, and that's not enough in some way.

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

Why? If we're saying that your constitutional rights are coming before this other legislation, and we know that section 52 of the Constitution says that the Constitution is the supreme law of Canada, and those section 35 rights are already included in this Constitution, it would appear to say that your inherent rights would be above these federal statutes. Wouldn't it?

[Grand Chief Cody Diabo]

According to section 35, at the end of the day, it's less than UNDRIP's recognition of indigenous rights. Section 35 is still contingent on Sparrow and Van der Peet, so unless Canada gets rid of the common law for section 35, it's inadequate at that moment. If we keep going back to section 35.... Our law and jurisdiction predate section 35, but we have to fall under section 35?

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

But section 35 recognizes that the rights exist. It's not creating new rights. It's recognizing and affirming the rights from my reading of it.

[Grand Chief Cody Diabo]

That's according to Van der Peet and Sparrow, so we still have to then prove all of this stuff and that we've had these rights pre-contact. It's more far-reaching than that.

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

Shouldn't a nation have to prove the rights if they're claiming that it's paramount over federal legislation?

[Grand Chief Cody Diabo]

Does Canada have to prove its rights to the United States? Why do first nations have to prove their rights to a settler nation at that moment?

[The Chair, Liberal, Patrick Weiler]

As much as I'm enjoying this exchange right now, and I'm finding it fascinating, I'm afraid I'm going to have to stop you there, Mr. Battiste.

Mr. Lemire, you have the floor for six minutes.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

Thank you, Mr. Chair.

Thank you to all the witnesses.

I have been on this committee for almost a year, and I am always amazed at the stories we hear from coast to coast to coast. It saddens me to see the acts committed against indigenous communities whose members were expropriated or forced to move.

Over the course of its history, Kahnawake has suffered enormous losses as far as land and use of waterways are concerned, particularly when the St. Lawrence Seaway was constructed. I sincerely hope that the legal proceedings under way will enable you to remedy historical wrongdoings to your satisfaction and that it will allow for some reconciliation.

Grand Chief Diabo, thank you for drawing our attention to the problematic aspects of clause 8 of the bill, which were the subject of prior consultations. First nations water sources are increasingly degraded by industrial activities, agricultural runoff and land-based waste disposal practices. However, first nations leaders have said that indigenous governments are not involved in the management of these water sources.

Can you tell us more about the type of collaboration your community would like to see under Bill C‑61? How would you like to be consulted?

Also, do you have any idea what the definition of a real protected zone should be?

[Grand Chief Cody Diabo]

You have my apologies. I put the translation on a little bit later, so I just got the end of that.

In a nutshell, from my perspective, it would be having proper consultation right away. It would start with that rather than the limited amount we've gotten.

Again, I do apologize. I only clicked on the translation afterwards. My legal counsel is more versed in the French language than I am. Perhaps I can turn it over to her to provide an answer on the beginning part of the question.

[Katie Spillane, Legal Counsel, Mohawk Council of Kahnawake]

Certainly.

You asked about the definition of protection zones. I think Mr. Frazer put it quite eloquently in his response to earlier questions, that it really has to come from first nations themselves to determine where their source waters are coming from and how they might be affected. As Grand Chief Diabo mentioned, there has been very limited consultation on this bill. It doesn't bode well for the implementation of the bill to have so much run through without adequate consultation.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

Grand Chief Diabo, in the preamble to my question, I acknowledged the enormous losses you have suffered as far as land and use of waterways are concerned, particularly after the St. Lawrence Seaway was constructed.

I will move on to my second question.

If the federal government truly intends to protect water sources in Canada, it must amend, strengthen and enforce laws to prevent industry from releasing effluent into those sources and put the onus on industry to provide drinking water treatment systems that provide access to truly safe water for communities affected by industrial operations.

Metals and carcinogens on the bottom of the Great Lakes are causing concerns in terms of infertility for indigenous men, problems with enteric and skin diseases and high rates of cancer in the population. These are all concerns that this committee has heard from witnesses. That does not include the social repercussions, particularly on the conduct of activities in the communities.

The construction of a nuclear waste dump on the shores of the Kitchissippi River, the Ottawa River, where four million people get their water, should be alarming, in my opinion. That should be obvious. However, the voices of indigenous communities, be they Anishinabe or upstream communities such as yours, are ignored.

What action should be taken to protect our waterways and to prevent irreparable damage that will have an impact on downstream communities?

[Grand Chief Cody Diabo]

Thank you for that.

In a nutshell, give first nations the right to govern our own waters.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

How do you think that should be included in a bill? Obviously, the waterways and lakes can be larger than the size of your territory. When a number of territories are affected, how should that be managed from one territory to another, or even from one province to another?

[Grand Chief Cody Diabo]

It's all our land. It's unceded.

Now we have to jump between jurisdictions. Ontario is working with us, at the end of the day. Including us in the process later on and recognizing.... I hate using that word, because I don't want to say that I need Canada's recognition. However, on Canada's end, it needs to recognize that it's not the only nation here, despite all the laws it's instituted, from the Indian Act and downward. You need to include first nations in the drafting and in being part of the program and the solution, rather than saying, “We're going to legislate this and you have to fall in line at the end of the day.” You have to go back to section 35 and this kind of stuff. We need to be part of the process. If we're going to traverse the analogs of time, going forward, we have to do it together. It's not with a paternalistic stance, where Canada is here, the provinces here and first nations here.

We're on a par with Canada. At the end of the day, our relationship is with the Crown, the British monarch and Canada. The federal government is holding that responsibility. We are on a par with the federal government. We need to start working at that level, together.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

Thank you, meegwetch.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Lemire.

Next, I'll turn the floor over to Ms. Idlout for six minutes or less.

[Lori Idlout, NDP, Nunavut, NU]

Qujannamiik, Chair.

Thank you to the witnesses for appearing on Bill C-61. It's such an important bill.

I completely agree with you, Chief Sherri-Lyn Hill. It's ridiculous that we're here regarding this bill, because jurisdiction over water was stolen from you. It was stolen from first nations, Inuit and Métis. The way this bill is drafted.... It's not a very reconciliatory way of giving that jurisdiction back.

I want to ask you this very quickly, Chief Hill and the grand chief on the video conference call: Were either of you engaged in consultation on this so-called codeveloped bill?

Maybe I can start with you.

[Chief Sherri-Lyn Hill]

No.

[Lori Idlout, NDP, Nunavut, NU]

To the grand chief on the video conference, were you engaged in the codevelopment of this bill?

[Grand Chief Cody Diabo]

Are you asking me first?

[Lori Idlout, NDP, Nunavut, NU]

Yes.

[Grand Chief Cody Diabo]

No, not on the codevelopment.