Indigenous and Northern Affairs Committee on Nov. 18th, 2024

[Lori Idlout, NDP, Nunavut, NU]

Okay. Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you, Ms. Idlout.

Go ahead, Mr. Melillo.

[Eric Melillo, Conservative, Kenora, ON]

Thank you, Mr. Chair. I appreciate the questions from colleagues, and the answers as well.

I think this idea of consent is something we spoke about in previous clauses, especially with UNDRIP. Obviously, within this bill, as you just mentioned, it's supposed to be guided by UNDRIP, which would require free, prior and informed consent. I would be curious to know how free, prior and informed consent would differ from “consent” as it's written in this proposed amendment here.

[Rebecca Blake]

I appreciate the question. The difference is that, in the principles section, it's to guide decision-making—free, prior and informed consent—whereas the proposed amendment is to require that consent. It's a different level of authority.

[Eric Melillo, Conservative, Kenora, ON]

I appreciate the principle. I think it's a great principle, but principles are not.... Well, they're a bit loose, I suppose. We heard about consultation and co-operation. Those are terms that, I think, can be defined in many different ways. We heard, not just on this bill but on many previous bills that the government claimed were co-developed or that there was adequate consultation, a very different thing from first nation leaders on the ground. I worry that....

Let me back up. Look at Ms. Idlout's question and the answer: Where is consent found in this bill? It's not, aside from the principles section, which is not really that enforceable, if I'm not mistaken. It's more of an idea than anything.

Without this bill, the minister has a lot of authority. Obviously, we hope the minister would make great and positive decisions with that authority, but when we're dealing with something as critical as drinking water, I don't know how we can deny first nations the opportunity to have that decision-making authority. I implore my colleagues to consider that.

I think there are a couple of hands, but I'll just share briefly.... We heard a couple of quotes directly at the committee that “the legislation imposes a federal framework by which we can create our own laws, but we don't need legislation to do so.” That was Chief Sheldon Sunshine.

We heard from Vice-Chief David Pratt, who said, “If they're allowed to proceed without our consent...there are going to be problems.”

Clayton Leonard mentioned that one criticism is that the preamble mentions article 19 of UNDRIP, and then throughout the legislation it is, he used the term, “watered down”.

We heard from many stakeholders, national organizations as well as local first nations, that they don't feel they're adequately consulted on this, and that they have concerns with the powers that the minister would have over what should be their jurisdiction, in my opinion. Again, I'll stop there because I think there are a few other comments that would like to be made....

I would just ask my colleagues, who seem to be moving in the other direction, to reconsider in favour of ensuring first nations have that authority and decision-making power. If we truly believe in free, prior and informed consent, I don't believe there's any reason we would be opposed to this.

[The Chair, Liberal, Patrick Weiler]

Thank you, Mr. Melillo.

We go first to Ms. Atwin, and then to Ms. Idlout afterwards.

[Jenica Atwin, Liberal, Fredericton, NB]

Thank you very much, Mr. Chair.

I'm a bit perplexed as to the change of heart. We've had discussions around this terminology before, also with regard to other amendments specifically and with other bills that we've studied at this committee, and we've had a bit of a different viewpoint.

I'll read a quote from one of our members, Mr. Schmale:

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 [actually] 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.

Is that the goal with this amendment, to tie this up and to ensure that first nations are not actually finally receiving the legal precedent, the framework, the support with funding that will be tied to this in the future? I'm just wondering why there's a change of heart now.

Again, we have it in the principles clause. We already have the bill that proposes the co-development as described in UNDRIP, which is already the recognized precedent, and that is consultation and co-operation. That has been clearly defined. Again, in the context of my own province and in the communities I represent, it's free, prior and informed consent all day long because we already defined it in that context.

Where it's not defined and where you've kind of changed your opinion on it, do you want to see this stalled? Is that what this amendment is about? I'd like some further clarification on that.

Thank you.

[The Chair, Liberal, Patrick Weiler]

I'll let Mr. Melillo respond quickly before going to Ms. Idlout.

[Eric Melillo, Conservative, Kenora, ON]

Thank you, Mr. Chair.

I do appreciate the question. I don't appreciate, frankly, the tone of it.

Look, we've been very clear that we've had concerns with not defining a number of things. Obviously, that is one, the definition of consent, because people don't seem to be able to define it. Mrs. Atwin mentioned that in New Brunswick perhaps it's not the case. Maybe that's something we should be looking to. I'm happy to do the work to give it that definition so that it is strengthened.

Regarding the goal of this, as I've said, we've heard from a number of first nation leaders who expressed concerns that their voices were not heard on this or on previous pieces of legislation, but particularly on Bill C-61. They want to ensure that they have the authority to govern their lands and their waters, as they should be able to. That's the goal.

I recognize that the definition of consent could be problematic, but I would say to the member, let's work to define it. Let's put that work in. To me, it does not make sense to include something in a principle, in a preamble, to say that you support it and then to not put it throughout the rest of the bill. To me, that just doesn't make sense.

I'm not going to make any further speculations or political commentary about it, because I don't believe it's going to be helpful. I just think that, for the sake of consistency, it would make sense to include it. I think we've heard from a number of leaders on this, so that's the goal here, to ensure that first nations have the consent and authority.

I know Ms. Idlout wants to comment, so I'll cede the floor.

[The Chair, Liberal, Patrick Weiler]

Thank you, Mr. Melillo.

With that, we'll turn the floor over to Ms. Idlout.

[Lori Idlout, NDP, Nunavut, NU]

[Member spoke in Inuktitut, interpreted as follows:]

Thank you.

I just want to reiterate that I'm in support of CPC-1 because there must be consent. It's important that indigenous people.... They don't have the tools to implement....

Like I was saying earlier, if it's not included, where is it? Where is the word “consent”? It's not in there, but it's in the foundation. The foundations are there for us to consider because I think this is a bit weak.

Therefore, I am in support of this amendment because it is strengthening that indigenous people must always give consent. We as indigenous people will be stronger. I know we are talking about fresh water. The indigenous people will be given some strengthening of their rights.

I also want to mention this regarding Bill C-61. When it was being developed, we were told that the federal government was working with first nations people. If this is true and if this will be the way, the minister should be working with indigenous people. If she were to enact laws, this will be better because this will work toward reconciliation and we can move in a positive direction, if first nations will be given a freshwater bill.

Thank you, Mr. Chair.

[The Chair, Liberal, Patrick Weiler]

Thank you, Ms. Idlout.

I see Mr. Zimmer.

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

In response to Mrs. Atwin, this is the Liberals' game, after all. It's to make water for first nations a part of this legislation. If this legislation isn't completely taken as is, then it's going to affect water on first nations and the ability to access it.

Your government's been in power for nine years. Certainly this legislation isn't keeping you from getting clean water to first nations, but that's what you're trying to portray in what you just said, Mrs. Atwin. I think we should get back to...if it's actually about water, make it about water and we can keep going.

Again, this is a bit of the Liberals' game. You've already been at it for nine years, but for some reason, you still haven't gotten it done and it's somebody else's fault. It's your government. Let me remind you of that.

Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you, Mr. Zimmer.

I'll pass the floor over to Mrs. Atwin.

[Jenica Atwin, Liberal, Fredericton, NB]

Thanks, Mr. Chair.

I really had hoped we wouldn't descend into this kind of partisanship. I realize that I was the one who mentioned it this morning. It's because I'm quite defensive of making sure that this bill is passed in a timely fashion, which we also heard from many partners who said to pass the bill without delay. Those are also voices that I'm going to represent here at this committee.

I'll also use whatever tone I feel is appropriate in this place. I'm being as respectful as I can, but again, I'm going to be firm with what I'm arguing here.

I can see there's goodwill and then it crosses over again into delay. Yes, first nations communities have had to wait for far too long. This bill is not about changing those boil water advisories. We've been doing that work. We're at 97%, currently.

Mr. Zimmer, you'd know that if you actually asked any of our indigenous witnesses questions during the committee testimony on this very important bill.

Now I would like to pivot back to our officials.

I wonder if you can further explain how this legal precedent around “consult and co-operate” has been enshrined in our legal framework here in Canada and how that could help us guide this discussion back to where it needs to be.

[Douglas Fairbairn, Senior Counsel, Crown-Indigenous Relations and Northern Affairs, Department of Indigenous Services]

The concept of “consult and co-operate” is embedded in the United Nations Declaration on the Rights of Indigenous Peoples Act, and that, in turn, draws on the language in the United Nations Declaration on the Rights of Indigenous Peoples. It is the modern terminology that is accepted globally, has been imported into Canada and is the gold standard in terms of dealing with indigenous concerns. That is why that language is used in Bill C-61.

[Jenica Atwin, Liberal, Fredericton, NB]

Again, can you speak to the implications or time frames that could be altered by using this language instead?

[Douglas Fairbairn]

Right now the bill is set up in such a way that first nations have the ability to choose the standards, but if a choice is not made, then the minister would have to work with first nations, consult and co-operate to determine a standard, federal or provincial. Requiring consent could delay the process indefinitely if a first nation were unable to make a decision, so this is meant to provide a practical approach to ensuring that water standards are acceptable and are in place on first nation lands.

[The Chair, Liberal, Patrick Weiler]

Go ahead, Mrs. Atwin.

[Jenica Atwin, Liberal, Fredericton, NB]

I'm just wondering whether my colleagues heard that response from the officials. It's really important to the conversation we're having right now, so I'd like to know whether they did.

[An hon. member]

Yes.

[The Chair, Liberal, Patrick Weiler]

I see that Ms. Idlout has her hand up next, so I'm going to Ms. Idlout.

[Lori Idlout, NDP, Nunavut, NU]

CPC-1 is looking to add subclause 18(3). Thinking of it in that way, does that mean subclause 18(3) applies to only clause 18?

[Nelson Barbosa]

That would be my interpretation, but it does speak to standards more broadly. Just to reinforce what my colleague from the Department of Justice spoke so eloquently to, “consultation” and “co-operation” are known terms. They are found in this draft bill several times. The term “consent” is, I would say, to my knowledge an unknown term. I don't understand the litmus test of consent, and I'd be concerned, on implementation of the bill, that there is language to both consult and co-operate and to receive consent.

[The Chair, Liberal, Patrick Weiler]

Go ahead, Ms. Idlout.