Indigenous and Northern Affairs Committee on Nov. 21st, 2024

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

I like the word "agreement" better than the word "consent", because “agreement” has some sort of practical application. It's saying there is an agreement among the groups involved.

For the purposes of this amendment, I'm really trying to get to wording that the government can support but that also doesn't infringe on provincial jurisdiction. When we're talking about protection zones that first nations are involved with, my concern is over a province not wanting to come to an agreement.

In the same vein as for the last amendment, I would be uncomfortable supporting an amendment whereby a province could continue to say that we don't have agreement. Thereby, there's a veto of protection zones, and communities could still have their waters poisoned.

This is my question to the officials here. If there is no agreement from the provinces, or a province, on what's considered a protection zone in that province, does that mean the whole purpose of protecting first nations' water would then not be in place?

I believe, because of the wording, it's saying that unless an agreement is finalized with a province, there will be no protections for first nations' water. My fear, just like in the last piece, is that if the protection of a first nation's water source is entirely dependent on an agreement of a province, it would mean that there is no protection until the province decides that there should be.

Is that an accurate assessment of this amendment?

[Rebecca Blake]

I appreciate the question.

These particular clauses work with other provisions in the bill as well. Clause 21 is really about bringing all parties together to the table to define what a protection zone is—first nations, provinces and territories and multiple federal ministers who are implicated on water.

The second phase of that is really in paragraph 6(1)(b), and that talks about individual first nations or groups of first nations coming together with the provinces and territories where they are located to agree upon an approach to implement and coordinate the laws of all orders of government in that space.

It is a multi-pronged approach that is contemplated. This potential amendment would add an extra step in that approach.

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

In stating that, the language around paragraph 6(1)(b) is definitely more comfortable for the federal government, and there is some sort of precedent for this in the past with other legislation that we've made with the province.

How can we ensure that first nations aren't held to the standard of a province agreeing to protect their water, but at the same time ensure that the provincial government has a say in this so that they feel comfortable that we are including them in the conversation?

[Rebecca Blake]

I appreciate the question.

It is delicate. There is no intent to infringe on provincial jurisdiction and every intent to respect that provincial jurisdiction.

That existing language around “consult and cooperate” with all parties allows everybody to have an equal seat at the table, working together on what those protection zones look like. Then, for the actual implementation of those protection zones, it's up to a willing buyer and willing seller—so provinces and first nations—to sit together and come to an agreement or another agreed-upon approach. It could be an exchange of letters, for example, among chiefs, premiers and ministers on how they would coordinate laws to implement actions in those protection zones.

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

Is there a stipulation in this, when we're talking about protection zones, so that a province or first nation wouldn't be able to rag the puck and delay this? Is there any kind of built-in mechanism to prevent delaying the protection of these protection zones? I feel that within a certain amount of time after the passage of this legislation, there should be an actual date for this to happen.

My concern, if could you speak to it, is that within this amendment there is no inherent time frame for the provinces to consult and co-operate to ensure that a first nation's protected zone is actually going to happen in one's lifetime. As someone who lives in a first nations community, I would really like to see that in my lifetime.

[Rebecca Blake]

I appreciate the question, absolutely.

In terms of a timeline, there are subclauses 20(1) and 20(2), which would require the minister to make all best efforts to ensure that those consultations and co-operation with all parties, including provinces and territories, do happen. I do believe it's six months—I don't have it in front of me—to begin that process.

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

Does this amendment impact that six-month time frame?

[Rebecca Blake]

Not necessarily, as that is subclause 20(2). This, I do believe, is an amendment around proposed subclause 21(3), so it does not directly impact it. It would be an additional step after that timeline.

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

Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you, Mr. Battiste.

Next I have Ms. Idlout on the list here.

Ms. Idlout, the floor is yours.

[Lori Idlout, NDP, Nunavut, NU]

Thank you, Chair.

I'm just wondering about.... Even if the second “consent” word was changed to “agreement”, the impact of this amendment, if it were passed.... We're talking about differentiations right now, with “jurisdiction” in clause 6 and then “agreement” in clause 21.

While I appreciate your feedback about the importance of outlining it in the “Jurisdiction” section, when we're talking about clause 21 and “agreement”.... This is feedback similar to what I've shared about how important it is that first nations are finally given the legal platform to have their voices heard on these kinds of things. This is because, while I appreciate the first “consent”—that the minister has obtained the free, prior and informed consent—of first nations governing bodies, I'm a bit more concerned about the governments of the provinces and territories.

You mentioned earlier, for example, that the agreed-upon approach could be used by way of letters. Would that be a strong enough indication to show that the first nations governing bodies will have the interpretation that these agreements will use their voice and that their first nations laws or their first nations law-making powers will be able to be incorporated in the section on agreements?

I'm sorry. It's not on agreements. What is this section? Am I missing a page? No, I'm not.

I'm sorry. It's the protection zones.

[Rebecca Blake]

I appreciate the questions. Maybe some additional clarification from my end would be helpful.

In essence, this section is really around regulation-making to define what a protection zone is and bringing all provinces and all first nations together as part of that process.

On clause 6, the “Jurisdiction” section, it is really up to individual first nations whether they want to exercise that jurisdiction or not. Part of the Government of Canada's intent here is to allow for traditional governance systems in how first nations exercise their jurisdiction. That is why paragraph 6(1)(b) is worded as an agreed-upon approach. It's to leave space for traditional governance and preferred governance systems of first nations, as long as they're agreeable to all implicated parties.

In that case, it's not necessarily all provinces. If the first nation is located in only one province and has a protection zone in only one province, it would be only that province.

[Lori Idlout, NDP, Nunavut, NU]

Okay. Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you, Ms. Idlout.

Next I have Mr. Melillo.

[Eric Melillo, Conservative, Kenora, ON]

Thank you, Mr. Chair.

I do appreciate the discussion on this and the concerns raised.

I think it's important, of course, to note that there are not many places throughout this bill where free, prior and informed consent is mentioned. This amendment aims to include that. I know that NDP‑40 was withdrawn in favour of this one to ensure that first nations' consent is included.

In terms of the agreement of the provinces and territories, I appreciate the concerns raised; however, I worry that without that agreement right from the get-go, a scenario may arise, as was described, in which perhaps there's a province that is not willing to agree or co-operate. In such a scenario, I think that without this amendment we're going to see this bill tied up in challenges.

We've talked about the fact that we don't know exactly what a protection zone will be. It may include land that is currently governed by the provinces. We've talked about what “connected” means in terms of rivers and how vast that could be. I think we run a real risk of tying this up in battles and challenges without provincial agreement.

Of course, we talked at length off-line about the word “agreement”, Mr. Chair. Although that is not defined explicitly, I think it gives the government some latitude on how they achieve that agreement, and we've seen many examples of the government being able to make agreements with the provinces and territories on a number of their programs and initiatives that they like to boast about. I won't advertise them for them, but they can if they'd like to.

I think that this is the balance we need to ensure so that first nation rights are respected, that the provinces and territories are respected and that we can put this into action and have a tangible effect, rather than just having it challenged over and over again.

I'll end there, Mr. Chair. Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Melillo.

Is there any more debate?

Go ahead, Mr. Battiste.

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

Once again, I like the word “agreement” better than the word “consent”, but I do want some sort of protection for first nations communities that protects a water source that's connected to them, whether it's their drinking water or their fishing zones. There should be some kind of protection so that first nations have these things protected within this bill without it being dependent on an agreement with the province.

I'd like to believe that provinces would have a moral obligation to ensure that the water sources of first nations communities are protected, but they may not have any other incentive beside that, especially with competing things like industry, corporate greed and costs that provinces might have to associate with it. I'd hate to have to hold up the entire purpose of this legislation because a province refused to sign on to an agreement that is the essence of this legislation, which is to protect these water sources for first nations communities.

If there was a time frame or if something was inherently built in that provinces would have to do in a timely manner and in good faith to uphold the honour of the Crown, I could possibly support that, but as it's written, it gives the province the ability to say that they don't want to come to an agreement with first nations communities over protected zones that they may be drinking from or fishing from or that they may be reliant on for passage of barges, as Mr. McLeod described about the Mackenzie River.

I would hate to say that when we had the ability to define protected zones in a good way, we left all the power in the hands of the province that has held it for the last few decades, if not generations, and that we failed to reach a consensus on how we can ensure that first nations have those protection zones completed and at the same time give the province the ability to weigh in.

I think that “consult and co-operate” might still be the best wording on that, but I know that this is a contentious part of this bill, and I'd hate to move forward in a way that doesn't have the Bloc or the Conservatives on board with protecting provincial interests. I know that's important for them.

I think that the discussion needs to be on what the correct wording is that allows us all to leave here comfortable that not only are the first nations protected—I am from a first nations community—but also that the provinces have a reasonable say in upholding the honour of the Crown.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Battiste.

Mr. Melillo has his hand up. I'll turn it over to you.

[Eric Melillo, Conservative, Kenora, ON]

Thank you, Mr. Chair, as no one else was intervening.

I again appreciate the concerns raised. I reiterate my belief that without provincial and territorial agreement, this bill will become almost unenforceable.

I'd say as well that I take the concerns raised by Mr. Battiste, but I don't believe there are just financial or industry incentives for provinces to want to maintain authority over certain lands or waterways. I mean, many provinces have very robust wildlife management strategies in a number of areas like that, areas that are already being protected in their own right.

I do have a very great concern with the federal government being able to define a protection zone without.... Again, we're not getting to the definition of it here in this legislation, nor should we be. We need to ensure we're hearing the voices of first nations and provinces and territories. We have to set this up in a way to be successful and to be collaborative. I do believe that this is the way forward, and I'd encourage my colleagues to vote in favour.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Melillo.

Ms. Idlout, go ahead.

[Lori Idlout, NDP, Nunavut, NU]

Could I just ask the experts what the practical effect of this amendment would be if it were to pass?

[Rebecca Blake]

I appreciate the question.

Without the consent of all first nations and without the agreement of all provinces and territories, it could make it difficult for first nations and provinces to work together to support the exercise of first nations jurisdiction in protection zones.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Ms. Idlout.

Go ahead, Mr. Battiste.

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

The practical effect would mean that these protection zones, which are the entire purpose of one portion of this very important legislation for first nations communities.... It would mean that if this amendment passed, first nations communities might be at the mercy of provinces to have protected zones that protect the water that they drink, the places where they swim and the places where they fish. Is that correct?

[Rebecca Blake]

In essence, it could, and it also would be in terms of “all first nations” as well and in terms of that “free, prior and informed consent”, in addition to agreement with all provinces and territories.