Indigenous and Northern Affairs Committee on Nov. 6th, 2024

[Lori Idlout, NDP, Nunavut, NU]

[Member spoke in Inuktitut, interpreted as follows:]

Thank you.

I want to ask our expert witness this: Can you give us an idea of what it would look like if NDP-14 were to go ahead?

[Nelson Barbosa]

Thanks for the question.

As written—if it were entrenched in law—my interpretation would be that, in the case where an agreement between a first nation and a province or territory couldn't be affirmed, first nations laws would apply in lands that are not section 91(24). They would apply to lands off reserve.

That's my interpretation, if this comes into force.

[The Chair, Liberal, Patrick Weiler]

Thank you, Ms. Idlout.

I'm not seeing any other interventions or hands up. We can go to a vote on NDP-14.

(Amendment negatived [See Minutes of Proceedings])

(Clause 4 as amended agreed to on division)

(On clause 5)

We're making some good progress, colleagues. We have BQ-4, which was withdrawn. We will be moving on to G-2.

I'll open up the floor for Mrs. Atwin to move G-2.

[Jenica Atwin, Liberal, Fredericton, NB]

Thank you very much, Mr. Chair.

I would like to move that Bill C-61, in clause 5, be amended by replacing lines 19 to 22 on page 8 with the following:

(3) The making of any decision under this Act is to be guided by the United Nations Declaration on the Rights of Indigenous Peoples, including the principle, referred to in the Declaration, of free, prior and informed consent.

It's about further enshrining our commitment to UNDRIP and implementing it. It underscores the importance of that co-development as described in UNDRIP. Specifically, that “consult and co-operate” language is very important for clarity. It also helps with additional definitions and a clarity piece throughout the bill. As well, it's consistent with my province, New Brunswick, where we have a “free, prior and informed consent” clause.

This is a very important amendment that I'd like to put forward.

Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mrs. Atwin.

Mr. Lemire, you have the floor.

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

Thank you, Mr. Chair.

In principle, I agree. I will still propose a subamendment to amendment G‑2. You've already received the wording.

I have a question for the officials. Is this a commitment to be met, pursuant to articles 10, 29(2) and 32(2) of the United Nations Declaration on Indigenous Peoples? Those articles require the express consent of indigenous peoples before projects affecting their lands are approved.

[Rebecca Blake]

Unfortunately, I don't have that proposal right in front of me.

In context, the principles section is about guiding decision-making for all parties through the implementation of the bill. Take it as aligning UNDRIP with federal decisions and first nations' decisions. It's about collaboration among all parties, including provinces and territories—collaboration guided by all articles in that declaration. Again, it's about guiding decision-making, not necessarily that all decisions must rest on and fully check all of those boxes before that decision is made.

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

This doesn't require the explicit consent of indigenous peoples before projects affecting their lands are approved. The bill therefore doesn't ensure that first nations must give their express consent before a project is approved.

[Rebecca Blake]

It doesn't in the context of this bill, no.

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

In that case, Mr. Chair, I move a subamendment to amendment G‑2. You received the printed wording. The subamendment is to incorporate articles 10, 29(2) and 32(2) of the United Nations Declaration into amendment G‑2.

The subamendment would add text after the word “cause”. As I said, it would also add articles 10, 29(2) and 32(2) of the declaration.

I can explain that, if you want.

[The Chair, Liberal, Patrick Weiler]

Yes, of course.

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

There are several elements. We want to protect first nations with regard to the movement of populations and the storage of hazardous waste, particularly on traditional lands. Such a situation requires the express consent of the peoples concerned. That seems fundamental to me.

Article 19 of the United Nations Declaration on Indigenous Peoples also directs states to consult with indigenous peoples to obtain their consent when adopting legislation or policies that may affect the free exercise of their rights. However, the focus is on article 32, which makes explicit reference to the economics of natural resources.

Article 32(2) says the following:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

We want the prior consent of first nations before any project is adopted, in accordance with the articles mentioned in the United Nations Declaration on Indigenous Peoples and their scope.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Lemire.

I have a speaking list going here.

First, I have Mr. Schmale, and then Mr. Shields and Mr. Melillo.

[Martin Shields, Conservative, Bow River, AB]

I'll go back to the original motion, not this one.

[The Chair, Liberal, Patrick Weiler]

We're now debating the subamendment.

[Martin Shields, Conservative, Bow River, AB]

Yes. I'm out.

[The Chair, Liberal, Patrick Weiler]

I have Mr. Schmale first, and then Mr. Melillo.

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

Thank you, Chair.

Thank you, again, to our witnesses.

Thanks to the Bloc for their subamendment.

Either through this legislation or any other piece of government legislation, have we defined “free, prior and informed consent”?

[Rebecca Blake]

I'm not aware that we have.

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

We're adding in this very important piece, but we haven't defined “source water”, “protection zone” or “free, prior and informed consent”. We will move forward with that piece of legislation, if it passes.

I'll repeat my question from Monday. What risks are we opening ourselves up to here?

[Nelson Barbosa]

Thanks for the question.

Per our conversation on Monday, there are both limitations and risks when we entrench things in law. On Monday, we spoke about limitations and risks associated with a definition around “protection zone”. The same could apply to “source water” and “free, prior and informed consent”.

For me, personally, the balance is between the strength of language in law and the rigidity of that law. That's difficult, sometimes, to undo.

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

I remember that whole discussion when we were debating and discussing the UN declaration legislation at this committee. One of the issues we, the opposition, had was with the definition of “free, prior and informed consent” and what that actually meant. I remember I said—and so did many others on this side—that, if we don't do the work and start defining some of the major pieces in the legislation, we're going to wind up in trouble at some point and potentially in court.

Sure enough, Bill C-53 came along. Again, nobody had defined “free, prior and informed consent”. Yes, that laid a lot on us—probably the vast majority around the legislature, those sitting at this committee and others in the House who don't belong to this committee. Nobody gave direction, through government legislation, on who needed to be consulted. We had first nations saying that they wanted to be consulted and Métis saying, “No, we don't need to consult them, because it's our own self-governance issue and it doesn't involve anyone.” We didn't have that definition, which led us down a very bumpy road.

Having said that, we're talking about the very important issue of clean drinking water, but we are still a little vague in regard to three very important pieces. I think this committee should do the work and think about what that actually means, potentially adding a definition, as best we can, to this legislation, so that everybody knows what we are talking about when this bill gets passed. Otherwise, you're not going to be able to provide certainty to the first nations waiting for clean water. You are not going to be able to provide certainty to industry, which may or may not want to start an operation.

This is very concerning to me. I'd like some indication around this table that we are hopefully going to get to that before we wrap up the clause-by-clause at the end.

Obviously, that's not to the officials. It's to the group around the table.

I just happen to be looking in your direction, because you're right in front of me.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Schmale.

Next, I have Mr. Carr.

[Ben Carr, Liberal, Winnipeg South Centre, MB]

Very quickly, Mr. Chair, to the officials....

I'm a little confused about the line of argument from Mr. Schmale. I understand where he's coming from. However, if the Parliament of Canada already adopted UNDRIP, which is inclusive of the language “free, prior and informed consent”, then absent a definition of that language—which, as you answered a few moments ago, legislation already passed through Parliament—it's unclear to me what difference this would make.

In other words, we already passed a law that didn't define this but is guided by the principle of it. What difference would lacking a definition make, if that piece of legislation has already made its way through Parliament? I'm just trying to understand this for some clarity there.

Thank you.

[Nelson Barbosa]

Thank you for the question. I think you answered some of the finer points with some of the question.

I think UNDA and UNDRIP have been passed and acknowledged. They make reference to a series of provisions including free, prior and informed consent. Definition aside, to turn back to the motion, it would be referencing essentially provisions that are already entrenched in Canadian law.