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

[Lori Idlout, NDP, Nunavut, NU]

As a follow-up question, in part because of Mr. Fairbairn's response, he said that “consult and co-operate” are in UNDRIP, but so is “consent”. I think that because “consent” is also in UNDRIP...it has to be something that we don't pick and choose what parts of UNDRIP to incorporate.

I'm just sharing my support again for CPC-1 because the relationships can be strengthened between the minister and the first nations, because the minister, in needing to get consent from the first nations governing body, will create a stronger understanding of what the first nations might choose or, if there's no choice that has been made, it creates that opportunity for further discussion between the minister and the first nations. I think that is an opportunity towards reconciliation and towards strengthening relationships, especially regarding standards and water. That's why I'm going to be supporting this amendment.

Qujannamiik.

[The Chair, Liberal, Patrick Weiler]

Thank you, Ms. Idlout.

Next, I turn the floor over to Mr. Battiste.

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

I understand the need for us to be guided by the principles of free, prior and informed consent. I think it's an important thing.

I worked in first nations communities most of my life before becoming a member of Parliament, and I know that difficult choices have to be made by chief and council. Sometimes they have to prioritize the best interests of all community members. Sometimes they will have individuals in their community who say that they didn't consent to that.

My fear is that the inclusion of this amendment is only in the circumstance where a chief and council has not made a decision whether they want to go to federal or provincial water standards. My fear is that having this kind of language sets up community members to challenge their own chief and council and say, “I didn't agree with the co-operation and consultation that was done with my chief and council. They don't have my consent.” It could be one community member saying, “They did not have my consent.”

If my knowledge around consent is correct, you have to have a willing person to give you that consent. If one person in that community says that they don't give that consent, will that tie this up in terms of the community being able to get clean water? By consent are we talking about a band council resolution? That can be passed pretty easily, but can a community member say that they didn't give their consent for that band council resolution? It ties it up and needs that community to do a ratification of that vote.

As someone who has seen a lot of votes, chiefs and councils in my lifetime, I'm scared that this clause inserted in there may have the actual impact of community members challenging their local leadership. Not having clear, defined consent and what that means in this thing, I'm scared it's going to tie it up in potential legal matters, where we have people going to court against their own community members, whatever their argument is toward that, so that community couldn't access first nations clean water and first nations in an efficient way.

That's my concern with this. It's introducing new language within something that is not predefined within the Indian Act.

If you were to say it requires a band council resolution as opposed to consent, I might be inclined to support that. However, the word “consent” in itself doesn't have that built-in mechanism where chiefs and councils can make a decision.

I'm scared we're inserting a word into legislation that chiefs and councils will have to debate their own community members on. This could lead to delays in first nations having clean water. That's why I'm thinking we need to have a little bit more discussion about that.

I'll ask the technicians.

This is based on my being in first nations communities and working in first nations communities for more than 20 years. Do we have a way to say that consent has been given by a community that meets what this legislation would put forward?

[Nelson Barbosa]

I appreciate the question.

To me, the term “consent” is ambiguous. I wouldn't understand what the litmus test for obtaining consent would be in this case.

As you've mentioned, there are other pieces of legislation that define more critically, maybe not the word “consent”, but how consensus or co-operation is reached. I would say the ambiguity of the term “consent” and who is providing consent is not clear in my mind.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Battiste.

Mr. Melillo.

[Eric Melillo, Conservative, Kenora, ON]

Thank you Mr. Chair.

I do appreciate the discussion. I do appreciate the questions, the answers and the concerns being raised. I truly do. Obviously, we are trying to make this as strong as possible and as consistent as possible.

I have trouble understanding how this is a new word. I know it's new in the clause being amended. If I'm not mistaken, we've heard here at the table multiple times throughout the course of this discussion that UNDRIP is law in Canada. I see heads nodding. UNDRIP, of course, requires free, prior and informed consent, so to me this is not a new word that's being included.

Has free, prior and informed consent been lived up to? Has that been met since UNDRIP has become law in Canada?

[Rebecca Blake]

I appreciate the question, and I might ask my colleague Mr. Fairbairn to jump in as well.

In terms of UNDRIP becoming law under the United Nations Declaration of the Rights of Indigenous Peoples Act, there are no specific examples of any issues that ISC is currently aware of in the implementation of the principle and article around free, prior and informed consent. Because that piece of legislation is fairly new, we don't have any at this time.

[Eric Melillo, Conservative, Kenora, ON]

Do you have anything to add, Mr. Fairbairn?

[Douglas Fairbairn]

No. That's correct.

[Eric Melillo, Conservative, Kenora, ON]

I appreciate that.

Can you remind us again when that act came into force?

[Douglas Fairbairn]

I believe it was 2021. Yes, it was 2021.

[Eric Melillo, Conservative, Kenora, ON]

It was about three years ago, give or take. To date you don't have any examples of how this article of UNDRIP has been implemented in Canada. Is that correct?

[Douglas Fairbairn]

That's correct.

[Eric Melillo, Conservative, Kenora, ON]

Okay. I appreciate that. That is concerning, obviously. We're talking about something that is law in Canada and that presumably is not being met and hasn't even been defined.

Mr. Barbosa, you mentioned that you didn't know what the litmus test would be of that. I think that's a legitimate concern. That's one we've raised, frankly, on this side of the House. That speaks to the further discussion we need to determine what that would be. I'm very open to that, Mr. Chair.

I would ask, for what's currently written, what the litmus test would be for “consultation and co-operation”, because I think that's also very ambiguous. As I mentioned, we heard a number of concerns from chiefs and leaders across the country about the development of this legislation, and that they do not feel they were consulted or that there was true co-operation or co-development. I would ask whether there's a defined litmus test—to use your words—for that term.

[Rebecca Blake]

There wouldn't be a prescribed definition in law. However, how we've applied it, from a policy basis, is really around sharing information openly and transparently and having ongoing dialogue—not a quick check-in on views but that ongoing dialogue that continues forever to ensure that we're working together on whatever is being developed as well as implementation of whatever is developed.

[Eric Melillo, Conservative, Kenora, ON]

I appreciate all of the answers. Thank you very much.

I wrap up here by saying that I hear the concerns that have been raised. I truly do. I think there's a broader discussion that we have to have about definitions, and I think we could spend a lot of time doing that. Perhaps this very second is not the time to do that.

Overall, why we brought this forward and what we heard at committee is that first nations largely did not feel that they were consulted adequately, and there were concerns about the authority the minister would have. For that reason we're going to continue to support this, as we brought it forward. We believe that giving first nations that authority and control will help rectify the fact that there was not adequate consultation, and we can ensure we are living up to that principle of consent.

[The Chair, Liberal, Patrick Weiler]

Thank you, Mr. Melillo.

Next I have Mrs. Atwin, Mr. McLeod and Mr. Schmale.

[Jenica Atwin, Liberal, Fredericton, NB]

I'd like to request that we suspend briefly. I'd like to confer with our team members and take some time.

[The Chair, Liberal, Patrick Weiler]

We'll do a brief suspension.

[The Chair, Liberal, Patrick Weiler]

I know there have been some fruitful discussions in our short break here.

I will return to the list of speakers that I have here.

I have Mr. McLeod next, but I think he's going to pass his opportunity to Mr. Battiste.

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

Thank you, Mr. Chair.

There have been some discussions. One of our concerns was around the word “consent” without having the ability to demonstrate that consent. One might say that all Indian Act communities, even if they're at the beginning stages of going through different processes, would understand what a band council resolution is, so our slight amendment to CPC-1, which has just been sent out in both official languages, says, “The Minister must obtain the consent of the First Nation governing body”—and this is where we'd like the wording—“as identified through a band council resolution before applying the standards referred to in paragraph (1)(a) or (b).”

This lets the community show what we believe is the path forward for a community to demonstrate that consent without having major delays in the future.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Battiste.

I believe this is about to be circulated here, so you will have that in all of your inboxes momentarily.

We'll go to the speaking list.

First, I have Ms. Idlout, then Mr. Schmale and then Mr. Melillo.

[Lori Idlout, NDP, Nunavut, NU]

Did you want to respond first, Eric?

[Eric Melillo, Conservative, Kenora, ON]

Thank you, Chair.

I appreciate the collaboration. I know it's not always easy in this place, but I think we're all trying to get the best bill we can.

I don't take any issue with what's been brought forward. I would just note that I don't believe it tangibly changes much. Looking more closely at the original amendment, it mentions that the minister “must obtain the consent of the First Nation governing body”. That's an important distinction. It is not individuals. It is a governing body, which has already been previously defined earlier in the legislation.

I don't believe it tangibly changes what I originally proposed. There might be some clarifying questions from other members forthcoming, but I just wanted to add my two cents in response.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Melillo.

We'll next go to Ms. Idlout and then to Mr. Schmale.