Evidence of meeting #131 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 consent.
A video is available from Parliament.
NDP
Lori Idlout NDP Nunavut, NU
Thank you.
I have two questions or concerns.
The first one is that under the definitions, we have a definition of the “First Nation governing body”, which “means a council, government or other entity that is authorized to act”.
In that first question or concern, if there is a government or other entity that is authorized, if this amendment is, as identified, through a band council resolution, are those two other forms of governance included in the definition?
Senior Counsel, Crown-Indigenous Relations and Northern Affairs, Department of Indigenous Services
Likely no. The band council resolution would deal directly with a council. If you're talking about a government or other entity, it wouldn't necessarily be a band council resolution. It could be some other form of approval.
NDP
Lori Idlout NDP Nunavut, NU
My second question is the concern of whether adding the Liberals' amendment narrows what consent means.
What I appreciate about CPC-1 is that it's not prescribing consent. When I think about first nations and when I think about UNDRIP, I understand consent to be a collective notion, not an individual notion. I remember that we discussed this in a previous bill as well, when we were talking about individuals and the difference between how collective first nations, as a governing body, can show its consent.
I wonder if you can help to better describe conceptually what is meant by this, whether it's collective consent and how UNDRIP could be used to show that the minister did obtain consent from a first nation governing body.
Director General, Community Infrastructure Branch, Department of Indigenous Services
Thank you for the question. Maybe a colleague from the Department of Justice can add to this.
To my mind, I think there are two components now being considered. One is “the minister “must obtain”, which means there must be an action that the minister must do in order to gain what we're defining, what we're calling consent. We talked at length about that. The new provision is how it will be actualized, the modality or the instrument. I see them as different. One is about the “must do something”, but now that we're introducing a concept of how that will be done—I suppose in this case through BCRs—I see them as cause and effect in terms of application.
I'm not sure whether my colleague from the Department of Justice has anything to add.
Senior Counsel, Crown-Indigenous Relations and Northern Affairs, Department of Indigenous Services
In terms of a collective right, a band council resolution could potentially capture that idea, where you have members of the band who are represented by their council, and the council is a democratic representation, so they are acting on behalf of the collective if they provide a band council resolution. A band vote, I suppose, is the most direct indication of the consent of the membership because everyone votes for or against, but you could take it one step removed and have a band council resolution. That could signify consent of the membership since that council is democratically elected.
NDP
Lori Idlout NDP Nunavut, NU
The Liberals' subamendment is the one that's creating more bureaucracy because the minister would see it as consent only after they've seen the resolution—number one. Number two, for example, if there's a first nations water authority, how would their consent be shown? When we look at the definition, on the definitions page, of “First Nation governing body”, the “government or other entity that is authorized” probably doesn't need a band council resolution. Am I wrong in thinking that?
Director General, Community Infrastructure Branch, Department of Indigenous Services
With respect to the Atlantic First Nations Water Authority, it obtained band council resolutions to act on behalf of first nations. I haven't considered the practice here, but the BCRs in the Atlantic context is what brought to life the Atlantic First Nations Water Authority. That ongoing collaboration with first nations is part of the makeup, so I would imagine that if they're talking about law-making powers or standards, the AFNWA would need to partner, obviously, with first nations to actualize those things. The template is there.
To go back to the first part of the question about oversight, bureaucracy and limitations, I think we already spoke to how the concept of consent may create serious delays in the implementation of standards. To go back to the elevator brief of what this legislation is, it is twofold. One is the affirmation of self-government for first nations to manage their own laws, and the second is to close a regulatory and standards gap. The introduction of consent in this legislation could seriously hinder the second part of that objective, which is to close a regulatory and standards gap, through the ambiguity of these terms.
Liberal
The Chair Liberal Patrick Weiler
Thank you very much, Ms. Idlout.
Next I have Mr. Schmale and then Mr. McLeod.
Conservative
Jamie Schmale Conservative Haliburton—Kawartha Lakes—Brock, ON
Thank you very much, Chair.
I appreciate the conversation we're having for a whole bunch of reasons, consistent with what we've been saying all along. It even goes back to the conversations we had when we were discussing UNDRIP. We had said at the time that we need to define and figure out what free, prior and informed consent was for a number of reasons.
One of those was how you obtain a path to yes or no on a resource project. We had brought up a point many times about what would happen if a few people—a minority of people—in a community voted no, but the majority voted yes toward something. It was brushed off many times.
Now we hear the point being made across the way that we need to figure this out because we can't have a few people turning down something the majority want.
Then we go to the incident with the Wet'suwet'en and the energy project that was being developed there. Again, on the elected band councils, 80% of the electors voted for the energy project. Of course, then minister Bennett travelled all the way out to British Columbia to speak to those who were against the project, not to the ones who were for it, who were ready to move forward with jobs, opportunity and wealth in their territory. No, she talked to the ones who were against it. Why? It probably aligned with the ideology of the Liberal Party and shutting down energy projects all across the country.
At the same time, the position of this party on this side of the House remains consistent all the way through. We need a path for yes; we need a path for no. We've said that I don't know how many times.
We're happy to work with the amendment. I know Mr. Melillo has already talked about that. Again, the same arguments that we are making would probably have led to a few more definitions being made in this piece of legislation, where we wouldn't have these conversations again. Of course, we were voted down by the Liberals over and over again, while we watched their position change over and over again based on what they want to achieve.
We have been consistent on this side about what would happen if we don't do the work. Exactly what we said was going to happen is happening. That's very unfortunate because this could be moving a lot faster.
I won't delay it any more, but I also want to point out that without defining these broad terms, and as Mrs. Atwin was talking about.... Just before we wrapped up for the constituency break, one of the last things we were talking about was the Green motion. One of the things she had mentioned was that the term “economic opportunities” was too broad. We needed to define that because it could mean anything.
Do you know what? We have a few terms here we'd like to define because it could be too broad. It leaves us open to a few questions. By doing the work, we actually would make this legislation better and hopefully improve drinking water for those who are are lacking the consistency in the action of the federal government.
Liberal
The Chair Liberal Patrick Weiler
Thank you very much, Mr. Schmale.
Next, I'm going to turn it over to Mr. McLeod.
Liberal
Michael McLeod Liberal Northwest Territories, NT
Thank you, Mr. Chair.
Free, prior and informed consent is an inherent right of indigenous people, and Jamie was correct when he said that at UNDRIP discussions, this came to the forefront. It almost sank that piece of legislation coming forward.
Consent from indigenous people could come in many forms and fashions, but I'm convinced that UNDRIP is broad enough that it covers most pieces of legislation, including this one. Does it mean we're going to have to redefine “consent” every time there's a new piece of legislation brought forward? I'm very concerned because, from where I sit, I see the desire to want “consent” defined will probably sink this bill. I don't believe that our term is long enough for us to clarify that definition. It could take years.
I think that, by going forward with CPC-1, we're certainly going to jeopardize this important and much-needed piece of legislation. I think there will be a time when we're going to need further clarification government-wide, but we can't do it in every piece of legislation. I'm very concerned where this is headed when we enter an area where we don't have a clear definition.
Liberal
The Chair Liberal Patrick Weiler
Thank you, Mr. McLeod.
Next I turn it over to Mr. Battiste, and then to Ms. Idlout after that.
Liberal
Jaime Battiste Liberal Sydney—Victoria, NS
I echo the comments of Mr. McLeod and, to some extent, my friend Mr. Schmale, but sometimes my job is to read the room and then find a way to make the amendment salvageable—because I live in a first nations community and I know the potential implications of what could happen—and find a way to make progress, not perfection. When Ms. Idlout asks whether adding this clause and this amendment to CPC-1 create additional bureaucracy, it's yes, but who controls that bureaucracy when you're looking at a band council resolution? It will be done by the community as opposed to others trying to say what that definition is.
What this attempts to do is to take everyone's read of what they would like to see and make it in a way that, if a community has to demonstrate this, which they will have to, we give them the language and the wording that's consistent within the current Indian Act system, which they've been working with for the last 150 years, in terms of understanding what the process is for them to show consent—if we're going to go down this road.
I heard from the other parties that they want to ensure that communities have a say in this. I agree with them. I don't agree that the term “consent” is the right one, but with this amendment, it makes it salvageable that everyone gets what they want and, at the end, the communities benefit without major delays. That's the hope.
Liberal
NDP
Lori Idlout NDP Nunavut, NU
Thank you.
I have a question for the experts regarding subclauses 18(1) and (2), and how proposed subclause18(3) is envisioned.
I wonder whether you could describe for us the steps that would happen if no choice is made with just subclauses 18(1) and (2), and then explain, if we ended up approving CPC-1 without the subamendment, how those steps would follow so that we have a better sense of what the potential reality would look like if Bill C-61 passes.
Acting Director, Legislation, Engagement and Regulations, Department of Indigenous Services
Yes. I appreciate the question.
In essence, what would happen is there are different ways—
NDP
Lori Idlout NDP Nunavut, NU
I'm sorry. This is only if no choice has been made and there had already been a series of actions that had happened before.
Acting Director, Legislation, Engagement and Regulations, Department of Indigenous Services
I would also clarify that the choice could be made through a self-determined choice, so it could be a letter to the minister, a BCR, as we've been discussing, or a first nation law as well.
If there's no choice that is made, it would be required that the minister and officials reach out to the first nation and, depending on what their provincial jurisdiction is—we heard from some first nations, for example in Ontario, where there's more of a preference around Ontario standards, and elsewhere there's more preference around federal standards—have that conversation and share very openly all the information we have at our disposal aligned with that consultation co-operation methodology, and then work together to determine what would be the best for that community. They might have specific technical instances that they have to take into account about their water treatment plant and how that factors into their choice. Together they would make that choice, and then confirm in writing what choice is made and apply those standards accordingly.
Liberal
The Chair Liberal Patrick Weiler
Thank you very much, Ms. Idlout.
(Subamendment agreed to: yeas 10; nays 1 [See Minutes of Proceedings])
(Amendment as amended agreed to: yeas 11; nays 0 [See Minutes of Proceedings])
(Clause 18 as amended agreed to on division)
I think that's a good example of our committee members working together.
That takes us to new clause 18.1, amendment BQ-7. If BQ-7 is moved, NDP-29 cannot be moved as they are identical. Also, BQ-7 and NDP-29 seek to introduce a new concept that is also related to NDP-49 and BQ-19.
With that, we are on BQ-7.
Mr. Simard, do you want to comment on that?
Liberal
Liberal
The Chair Liberal Patrick Weiler
BQ-7 was withdrawn. We will move to NDP-29.
I'll pass the floor over to you, Ms. Idlout, should you wish to move it.
NDP
Lori Idlout NDP Nunavut, NU
[Member spoke in Inuktitut, interpreted as follows:]
Thank you.
This item, NDP-29, was given to us by the British Columbia Assembly of First Nations. It's to add:
18.1 The Governor in Council may make regulations respecting the development of the dispute resolution mechanism provided by section 25.1 in order to foster the entering into of agreements.
Thank you.
Liberal
