Indigenous and Northern Affairs Committee on Oct. 10th, 2024

[Patty Hajdu, Liberal, Thunder Bay—Superior North, ON]

Absolutely.

Well, first of all, there's a premise problem in the way the question is posed. In fact, it's the chief and council that determine when a lift is appropriate. I think we need to remember that chiefs and councils have the self-determination to make those decisions for their communities.

However, I will say that Mishkeegogamang has a new plant. We are working with the community now on the solutions that are creating challenges with the water that the new plant is delivering.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Melillo.

Next we will move over to Mr. Hanley for six minutes, please.

[Brendan Hanley, Liberal, Yukon, YT]

Thank you very much.

Thank you very much for appearing, Minister, and thanks to all the officials for being here today. It's a very important day today. We heard from the grand chief as part of this meeting.

On the subject of getting to those more perhaps intransigent drinking water advisories, as you say, 144 have been lifted since 2015. That's fantastic work. We've come a long way. Progress has slowed and I think because we are getting into the ones that are more complex, has become more nuanced and perhaps more technically difficult.

How do you see that this bill and its implementation will help get through those last ones and also will be enduring to prevent—which is really our aim—those boil water advisories in the first place?

[Patty Hajdu, Liberal, Thunder Bay—Superior North, ON]

Thank you for the question.

I think I'll answer it in reverse, because I do think that this bill.... You and I both have a background in public health, so prevention is our first love.

This bill actually does set the table so that we never go back to a place where communities don't have the appropriate financial resources, the technical support or the inherent rights to regulate water, which has led to so many of these intractable situations.

The government has spent in the billions of dollars to lift boil water advisories, which was an amount that built up over years of neglect and years of inequitable funding for first nations infrastructure, including water infrastructure.

One important piece of this bill is the co-development of funding models. As you know, and as parliamentarians know, the process for which first nations receive allotments for water provision, water operation, has always been decided by Ottawa, by the Finance Minister, by the Prime Minister, and although we've seen tremendous increases in appropriate operating expenses provided to first nations communities under the Liberal government, you could easily see it slipping back under another government. This bill says that this can no longer be an arbitrary decision by Canada, but rather it has to be co-developed with first nations so that they can set the appropriate regulations and then can have comfort that they will have long-term, sustained funding that will allow for the development of expertise in their communities, that will allow for a certainty for operator salaries and that will allow for the capacity of the community to grow in its own ability to monitor and, in some cases, to design their water operating systems.

The number of stories I've heard about communities that have received contractors that build these plants that then don't resolve the water safety issue is appalling. What we're trying to do through this legislation, at least in part, is to restore the self-determination to communities to be able to develop their own expertise and, in some cases, to build on the existing expertise so that we never return to those situations again.

[Brendan Hanley, Liberal, Yukon, YT]

Thank you.

You did bring up the question of funding, and we have heard some uncertainty about maybe, as some have expressed, a lack of definition about funding. You talked about, in your opening remarks, how this will be set up through the regulations. You have to have the steps in place.

On the other hand, I've heard, even today, one of the witnesses say that the government needs to get real and address issues in good faith. To me, the legislation is part of that getting there.

How would you ensure that the funding for first nation water services is going to be sustainable, stable and needs-based, and that it will be addressed through the regulations and through what comes afterward?

[Patty Hajdu, Liberal, Thunder Bay—Superior North, ON]

I think that is one key element of this legislation that, quite frankly, reflects the engagement process and the collaboration of developing this bill, because that issue came up time and time again in the initial consultations: “How can we trust Canada?” Essentially, if you boil it down, that's what first nations are asking. How can we trust Canada? Canada has not been a good partner to us as first nations for a very long time—some would argue ever.

This legislation attempts to get at that question of trust by creating a mechanism that compels the Government of Canada to work on funding models with first nations so that we move ourselves away from a colonial approach, a top-down approach, from Ottawa, often made by decision-makers who, in some cases, have never set foot in the community where this will deeply impact their members. This actually changes it. It changes the model of decision-making around funding allocations to include first nations voices at the table.

You've heard, I'm sure, so many times, first nations witnesses at this table say—in fact, I heard it from one first nations chief as I was waiting—that we cannot have decisions made behind our backs, whether it's by provinces or territories or by the federal government. They need to be in the conversations. Therefore, the co-development legislation—

[Brendan Hanley, Liberal, Yukon, YT]

I want to squeeze one more question in, briefly.

It's really completely about co-development. What have you learned about co-development that could be applied to other legislation that we contemplate?

[The Chair, Liberal, Patrick Weiler]

Give just a very brief answer, please.

[Patty Hajdu, Liberal, Thunder Bay—Superior North, ON]

I'd love to talk about that at length.

I would say that at the beginning of this, we had a very different definition by members who were helping us draft this legislation and think through this legislation of what co-development was. By the end of it, I think we've learned that co-development starts a lot earlier than you would imagine.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Hanley.

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

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

Thank you, Mr. Chair.

If I may, I'll be sharing my time with my colleague from the Green Party, Mike Morrice. Since he wants to take part in the demonstration to support the supply management bill, I will give him the opportunity to go as soon as possible.

[Mike Morrice, Green, Kitchener Centre, ON]

Merci, Monsieur Lemire.

Minister, I want to start by quoting what we heard from Chief Hill earlier this week. Her words were, “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.”

Her community is one where 70% of households are without reliable piped drinking water. We also learned from her that while we've been told that consultations began in 2018, no one from Six Nations was consulted until they had their first opportunity to present to this committee just a few days ago.

If you're telling us that first nations have co-developed the bill, why are we hearing such a gap between communities affected like Six Nations, Chief Hill's community, and what we're hearing from you?

[Patty Hajdu, Liberal, Thunder Bay—Superior North, ON]

First of all, thank you for coming, and I know this would be very interesting to the party you represent, and I'm glad you're here to talk about clean water.

I first want to talk about your question about best efforts. In fact, in 1994, in a decision of the Supreme Court of British Columbia, Justice Dorgan determined that “best efforts” imposed a higher obligation than “a reasonable effort”: “'Best efforts' means taking, in good faith, all reasonable steps to achieve the objective, carrying the process to its logical conclusion and leaving no stone unturned.”

In fact, many of the participants in developing this legislation acknowledge that “best efforts” is quite a significant bar for Canada to reach and that it holds Canada to a high degree of accountability for the sufficiency in funding, which is what “best efforts” largely refers to in the legislation.

In terms of the consultation—and I won't repeat everything I said to MP Melillo—we have had extensive consultations, and there have been many opportunities, including direct outreach to every first nation implicated and including opportunities to submit online and opportunities to participate in consultations.

I can't speak to Chief Hill's particular experience, but I can tell you that we're still open to speaking to chiefs.

As you know, we are working through a process of considering amendments as they might arise from this committee, and we will continue to be there to meet with any chief or council who wishes to speak with us.

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

Thank you, Madam Minister.

In that regard, there's an elephant in the room: Why isn't the Minister of Crown-Indigenous Relations co-defending this bill with you? He can certainly delegate responsibilities, but when it comes to the human rights of first nations people, it is inappropriate for him not to be there. We talk about rights, respect for agreements and treaties, but it is absent.

This is what first nations have told us repeatedly over the past several meetings of the committee. It sends a message that the government sees water management for first nations as purely administrative. However, it's an essential element, which is at the heart of first nations development. Why is that?

[Patty Hajdu, Liberal, Thunder Bay—Superior North, ON]

First of all, I'll just say that no bill is able to be presented in the House of Commons unless it's supported by cabinet. As you know, Minister Anandasangaree and I work very closely together, and I have the full support of cabinet in working on this legislation; otherwise, I obviously wouldn't be here today.

What I will say is that Indigenous Services Canada works extensively with first nations communities on water and water development. While Minister Anandasangaree is responsible for working with communities on things like treaties, he and all of our colleagues are responsible for ensuring that the work of first nations gets done appropriately and in a timely way.

That responsibility in terms of services does fall under my portfolio. I have a department full of officials, engineers, technicians and legal experts in this area, while his department might not, so we have worked very closely with Minister Anandasangaree. We have worked very closely with other related ministers, such as the Minister of Environment, to make sure that we are aligned in the work we're doing to protect water in this country.

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

However, it would have been nice if he had been here to address those concerns.

Also, what is preventing the government from investing massively now to reduce the infrastructure gaps in a number of the communities that testified today? What is stopping you from supporting a land guardians program and recognizing indigenous knowledge? Why does it absolutely take a bill, which is controversial for the first nations themselves, to move forward?

[Patty Hajdu, Liberal, Thunder Bay—Superior North, ON]

This may seen controversial to you, but it's not controversial to the hundreds of people from first nations who have worked on it. I would say that what this bill does is actually provide the certainty for the kind of work that you're referencing.

Listen, right now, Canada can arbitrarily decide how much it wants to fund a particular water system. Canada can arbitrarily decide that it's going to cut the funding for water operators across this country. Canada can arbitrarily decide what regulations might be in place.

What first nations are saying through this legislation is, first of all, to respect their self-determination and, second of all, to be a true partner, and that's what this legislation actually achieves.

Of course, there are opportunities for amendments to make it stronger. You will deliberate on those amendments. I will look forward to your feedback. As I've said publicly, we are open to amendments that strengthen the aim of this bill, but this bill has, really, two goals. One is to ensure that first nations are never, ever, in the position that they were in before 2015, when they were at the whim of a federal government that did not prioritize their rights to clean drinking water. The second is to set a framework whereby first nations have the tools they need for full self-determination over protecting their water sources and their water systems. I can't imagine a way forward that doesn't include those two elements.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Lemire.

Next we will go to Ms. Idlout for six minutes.

[Lori Idlout, NDP, Nunavut, NU]

Qujannamiik, Iksivautaq.

I must start by shaming you, Minister Hajdu, for your pride in this work. I must shame you for being proud of the investments that you say have improved so much for first nations, especially knowing how many gaps there are in ensuring that first nations are achieving equal health and equal opportunities for economic development. First nations will continue to have to negotiate their jurisdiction over water. I'm quite disappointed that the work that is supposed to help first nations take ownership over water still limits them. It is supposed to respect first nations' right to water, jurisdiction and human rights. You introduced a bill that is below the minimum standard set by the United Nations Declaration on the Rights of Indigenous Peoples.

I feel quite strongly that if the federal government were challenged on this bill not meeting the duty to consult standard, the court would find that you failed, especially having learned that only about 31% of first nations were consulted.

On June 12, I questioned federal bureaucrats at the indigenous and northern affairs committee regarding how many people had been engaged. They were very reluctant to respond to my question regarding numbers. I had to pressure bureaucrats Nelson Barbosa and Joanne Wilkinson to finally answer me. They said that out of the 634 first nations that would be impacted by this legislation, only about 181 were engaged.

There are huge concerns. We heard from Neskantaga. We heard from the Mikisew first nation. We heard from the national council. We heard from Trevor John in today's sitting, as well as from Cold Lake First Nations' Chief Kelsey Jacko and so many more who had not been consulted.

I'm quite fascinated by your statement this morning about “moving...away from a colonial approach” and how you see this bill doing that. We currently have the Shamattawa case in the Federal Court. It had its three-day hearing, where Scott Farlinger, the federal lawyer said, “some maturity and without unnecessary adjectives” regarding Shamattawa First Nation, and also said, “The claimant under Section 7 may have an extreme need, but Canada doesn't deprive you of your interests [or] stop you from helping yourself.” That, to me, is very much in opposition to your political posturing when you say that this bill will move away from a colonial approach.

Meanwhile, because of the way you introduced this bill, first nations will be required to consult and negotiate with municipalities, provinces and territories regarding source water protection and protection zones.

I wonder if you could answer, for us, how you reconcile that difference. If you respect first nations' right to self-determination so much, why did you introduce legislation that requires us to have vague notions about what self-determination looks like for them?

[Patty Hajdu, Liberal, Thunder Bay—Superior North, ON]

Thank you for sharing your perspective, MP Idlout.

With regard to your comment around shame, it will be all of our shame if we don't transform how we do things in this country. That's what this bill is attempting to do: to transform how we create legislation that deeply affects first nations people and to transform how we have relationships that are open, inclusive and evolving to include first nations voices.

That is work that I am proud to do, actually. I am proud to do this work. It's difficult work, especially when you represent a system of colonialism that has oppressed indigenous voices for so long, yet it's such important work.

I thank all colleagues for having these important conversations with first nations partners, because you are hearing the reflection of that difficult relationship in the ways that people are expressing themselves to this committee.

With regard to engagement, a number of people have said that in fact they felt fully engaged, that the engagement was more than the kinds of engagement they've ever had in the past. This includes, for example, Chief Crowfoot from Siksika, who said, “For the first time ever, we had opportunities to review and comment on draft legislation.” He said also, “Although we had to fight hard, Canada responded with critically important changes to the bill.”

Don't forget that the bill you're studying is dramatically different—

[The Chair, Liberal, Patrick Weiler]

Minister, I'm afraid I'm going to have to ask you to wrap it up.

[Patty Hajdu, Liberal, Thunder Bay—Superior North, ON]

—from the first draft.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Ms. Idlout.

With that, we're going to move into the second round of questioning.

For five minutes, I will turn the floor over to Mr. Schmale.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Thank you very much, Mr. Chair.

Thank you, Minister, for being here.

Minister, according to your website, the primary reasons drinking water advisories were issued in first nations communities are disinfection at 32%, equipment at 30%, microbiological quality at 18% and source water quality at 6%.

Given the fact that around 80% of the advisories have something to do with equipment and with ability to access parts for repairs or training in community, how come this legislation leaves out the part about having a rapid response team? Similar to a health emergency team, they can fly into a community, can be there with a part and can repair—with the assistance of those on the ground—the malfunctioning equipment. This legislation completely leaves out the majority of the reasons that drinking water advisories are in place.

[Patty Hajdu, Liberal, Thunder Bay—Superior North, ON]

In fact, this legislation will create a framework for exactly that kind of work.

I do want to speak to what already happens in some of those scenarios, so I'll turn to Nelson Barbosa.