Evidence of meeting #129 for Indigenous and Northern Affairs in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was idlout.
A video is available from Parliament.
Liberal
The Chair Liberal Patrick Weiler
Thank you very much, Mr. Carr.
Next, I have Mr. Shields, Mr. Melillo and then Mr. Zimmer.
Conservative
Martin Shields Conservative Bow River, AB
Thank you, Mr. Chair.
I'm following up on Mr. Schmale's point.
It was enacted in law and putting it in this one would then activate it, I believe. If it's activated and we have no definition, then it's going to be in the courts. We can give it some direction, or we can leave it to be dealt with by the courts. This activates that particular principle. It really does. It was passed in legislation before, but this piece of legislation would activate it.
I think that's the difference. We're talking about its having been in law in principle versus in legislation, which would activate it. That would be the challenge we have here of leaving it that way.
Maybe it's something we want to do, but then we have to understand that somebody else will have to give it a definition.
Liberal
The Chair Liberal Patrick Weiler
Thank you, Mr. Shields.
I have Mr. Melillo, then Mr. Zimmer and then Mr. Carr.
Liberal
Ben Carr Liberal Winnipeg South Centre, MB
Thanks, Eric.
Very quickly, this is to Mr. Shields' point, and I would direct this to our Department of Justice folks.
Does the language that precedes the reference to it here matter? I'm talking specifically about the words “guided by”.
Can you provide the legal explanation as to whether or not the fact that the language is preceded by “guided by” would therefore soften perhaps some of the concerns that my colleagues have raised?
Senior Counsel, Crown-Indigenous Relations and Northern Affairs, Department of Indigenous Services
Yes, I would agree that it does. The making of decisions is guided by the principle of PIC as well as by article 10 and article 32.
I would say—
Liberal
Ben Carr Liberal Winnipeg South Centre, MB
In other words, just so I can summarize the last two points, we're now talking about guided by the spirit of a definition that perhaps is lacking here and perhaps lacking in legislation that's already passed. Nonetheless, we're talking about being guided by the spirit of something that is defined in a piece of legislation that is already the law of the land.
Tell me if I'm putting words in your mouth, but in your view, that could legitimately—and I understand where my colleagues are coming from—decrease the concern around the lack of a definition. Do I have that right?
November 6th, 2024 / 7:50 p.m.
Senior Counsel, Crown-Indigenous Relations and Northern Affairs, Department of Indigenous Services
Yes, that's right.
The UNDA has essentially indicated Canada will be adhering to the United Nations Declaration on the Rights of Indigenous Peoples, and this, of course, is consistent with that.
Conservative
Bob Zimmer Conservative Prince George—Peace River—Northern Rockies, BC
I have similar comments to what I think were made by my colleague Mr. Schmale.
In essence, this is what you're doing here. We all know that you could have had water yesterday. You could. You could have had it done in 2021 like you promised. What putting this kind of language into legislation like this puts you at risk of is, instead of having a free runway for getting water done, you're going to possibly put this before the courts. I shouldn't say you'll possibly put it before the courts. You will be putting it before the courts, because we've already had provinces concerned about this legislation and the protection of source water in those provisions. We've had a countless number of first nations speak to this committee on this very issue.
Instead of just having an unlimited capacity to get water to first nations, what you're doing by doing this is putting it into the courts. I think the public who are watching this right now need to understand the risk that you're putting this under by having these provisions in it.
Thank you.
Liberal
The Chair Liberal Patrick Weiler
Thank you, Mr. Zimmer.
Next, I have Mr. Melillo, Mr. Schmale and then Mrs. Atwin.
Conservative
Eric Melillo Conservative Kenora, ON
Thank you, Mr. Chair.
I apologize for the confusion of raising and lowering my hand so often, but thank you for recognizing me again.
I appreciate the discussion. I think it's an important one.
I think I agree with much of what Mr. Carr said, especially the first time he had the floor, about the fact that UNDRIP has passed. It is law. I don't believe that what we're debating will actually have much of a tangible impact or change the legislation itself.
However, now that we are discussing it, there are some important clarifying questions that I have. There are some other amendments that will be coming that mention free, prior and informed consent. I'm wondering this: Without the amendment, would just this clause here already mentioning FPIC then ensure that free, prior and informed consent is necessary throughout all aspects of this legislation?
I'll start with that question.
Acting Director, Legislation, Engagement and Regulations, Department of Indigenous Services
No. It's a guiding principle for decision-making. It's not necessary in terms of moving forward on decision-making.
Conservative
Eric Melillo Conservative Kenora, ON
Okay. It's just a guiding principle. There are some other amendments that want to put it explicitly into other aspects. Those amendments would still need to be moved for that to happen.
Acting Director, Legislation, Engagement and Regulations, Department of Indigenous Services
I'm not sure if I understand the question correctly, but I'll take a stab at it. In essence, with a guiding principle, it's that any decision-making take into account that free, prior and informed consent. It does not mean that consent needs to be achieved in order to make a decision.
Conservative
Eric Melillo Conservative Kenora, ON
Given the fact that the UNDRIP has already passed in the House of Commons—free, prior and informed consent is already necessary through the UNDRIP—I'm wondering whether there are examples that the government can look to where it has been exercised and implemented.
Director General, Community Infrastructure Branch, Department of Indigenous Services
We're happy to return with that as well.
Conservative
Eric Melillo Conservative Kenora, ON
I would appreciate it if you could. I'll just make a note of that.
Perhaps I'll ask another question.
Again, since UNDRIP has already passed, are there specific measures or...? What is the accountability mechanism for it within the government to ensure that the government is living up to it?
Acting Director, Legislation, Engagement and Regulations, Department of Indigenous Services
I'll ask my colleague from the Department of Justice to also help on this one, but there is the report on implementation of the act. That is one of the key accountability measures.
I would also point to the committee's work, section 5 of UNDA, as we like to call it, which is to, “in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure” that federal laws are aligned with the declaration. That's part of the work that's ongoing through your committee today.
Liberal
Conservative
Jamie Schmale Conservative Haliburton—Kawartha Lakes—Brock, ON
Thank you, Mr. Chair.
I'll just reiterate what Mr. Carr said. We know that the UN declaration is law, but—just so it's on the record—we do not have a definition for “free, prior and informed consent”. Is that correct?
Senior Counsel, Crown-Indigenous Relations and Northern Affairs, Department of Indigenous Services
Yes, that's correct.
Director General, Community Infrastructure Branch, Department of Indigenous Services
That is correct.