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

[Nelson Barbosa]

The department has submitted a brief to this committee on the engagement process leading to the tabling of the bill on December 11 of last year, so I won't speak more about the engagement process, but I would refer members to that.

With regard to the latter question, this section is about the creation of, and consultation on, protection zones. As we've discussed many times, the first concept is what the space is—who the people are in that space, the parties in that space, the laws that protect that protection zone and what the consequences are. It requires all parties to come together and now co-develop an approach.

We've heard concerns from many first nations, as have members of this committee, about the willingness of provinces to come to the table to support aligned laws and to create a co-developed context in which provinces must be co-developers in that process. As I've mentioned before, that may detract potential provinces and territories, and maybe even first nations, from aligning the laws. Ultimately, this legislation is about empowering first nations to create their own laws and protecting Canada's waters. There may be limitations to that with this amendment.

[Eric Melillo, Conservative, Kenora, ON]

I appreciate that.

I think there are other hands, so I'll stop there.

[The Chair, Liberal, Patrick Weiler]

Thank you.

Go ahead, Mr. Zimmer.

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

I just want to support my colleague, Eric Melillo. I think what he says is very accurate. This is a pre-emptive bit of good advice, especially as part of the legislation, to keep it out of the courts.

Let's get back to the premise of the bill. This is very much setting itself up to be an impediment to getting water for first nations, as opposed to actually getting water for first nations. This government has been in power for nine years. Are all the boil water advisories gone? No, they're not. The government promised that they'd be gone as of 2021, but here we are.

The government could keep going down the list and just keep eliminating those boil water advisories, but instead of that, it's offering a piece of legislation that potentially will restrict water for first nations and get it caught up in courts across the country because certain provinces have problems with the way this legislation is written.

I would challenge the government just to get water done and, you know, follow up on a promise it made a long time ago instead of tangling up the entire process in the courts.

Thanks.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Zimmer.

Next we're going to go to Ms. Idlout and then to Mr. Shields and Mrs. Atwin.

Ms. Idlout, the floor is yours.

[Lori Idlout, NDP, Nunavut, NU]

I support the intent of this amendment, because first nations have been ignored for so long by all levels of government. Having an amendment like this, having provinces and territories co-develop with the first nations' governing bodies.... I understand the intent.

On hearing the concerns brought forward by the Liberals of the potential delay, my own dilemma is that I don't consider it delay. The conversations, the negotiations and the decision-making that can happen together are not delay to me. Ensuring that first nations' governing bodies are in that process means that we will be listening to what they've been asking for, which is to be heard by levels of government. Ensuring the co-development process can even help strengthen relationships.

I'm very much conflicted—I really am—but I'm leaning towards supporting CPC-4 because it gives first nations' governing bodies another avenue to be part of a development process that will ensure that their rights are being respected. I think I've just persuaded myself that I'm going to support CPC-4.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Ms. Idlout.

Next we'll go to Mr. Shields and then to Ms. Atwin.

[Martin Shields, Conservative, Bow River, AB]

She made my argument.

[The Chair, Liberal, Patrick Weiler]

Thank you, Mr. Shields.

Go ahead, Ms. Atwin.

[Jenica Atwin, Liberal, Fredericton, NB]

Thanks.

I have a question for our officials. Based on Mr. Zimmer's comments, would including co-development prevent us from being tied up in court, or is it the opposite?

[Nelson Barbosa]

Much of our conversation has been around definitions. We've talked about “consultation and co-operation” as being more of an understood term. I believe that securing the co-development of a province or a territory, and how that is done by a federal minister in partnership with first nations, could be highly contentious. It could lead to first nations in many cases acting alone in water management on only their lands, which I think could continue what is a current practice of litigation of first nations against provinces to protect their waters.

My concern is a lack of action, not litigation. I think the litigation will continue, but I think co-development will be such a high bar for provinces and territories that it may.... The entire purpose of this provision is to bring people together, and I think it may push them apart.

[Jenica Atwin, Liberal, Fredericton, NB]

I'm also considering what happens if you don't have a willing participant. We recently had an election in New Brunswick, for example. We now have a willing participant in those conversations—around title claims, for example—to go back to the negotiating table rather than to litigate. Our previous government was not in favour of that. I worry about the idea that you need to have that partner there to do that co-development.

Those would be my concerns—that there are some political implications about who's willing to have those conversations.

[The Chair, Liberal, Patrick Weiler]

Thank you, Mrs. Atwin.

Next I have Mr. Battiste, and then we'll go to Mr. Zimmer.

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

While I can definitely agree that if you had provincial governments and first nations and the federal government as willing participants at the table to co-develop something when the intent was to ensure that first nations had clean water and the protection zones under this were covered, in Nova Scotia they poisoned water next to Pictou Landing and in that area for more than 40 years. The province refused to come to the table to talk about it because of the industry that was making money and creating jobs.

Now, if we're asking first nations to come to the table with a province that is putting industry and jobs ahead of clean water for that first nation, what we're doing in this legislation is that instead of having protected zones with consultation and co-operation with provinces, we're giving the provinces the ability to say that they won't co-develop this with first nations.

It seems to me that if we're trying to protect the protection zones that first nations are connected to, we're giving the provinces an ability to say, “No, we didn't co-develop that, so it's not something we're going to move forward on.”

If the NDP supports this, I want them to know that we're giving provinces the ability to continue to poison first nations communities' waters and to not come to the table at all. We've seen too many examples, in the history of first nations, of provinces putting jobs and industry ahead of first nations communities. By putting that in there, what we're doing, in a sense, is giving provinces the ability to say that they didn't co-develop that or that they refuse to co-develop it because it might impact jobs in their communities.

For that reason, I cannot accept this amendment. I would strongly encourage my colleagues to have conversations with first nations communities on what is about to transpire.

We're not giving first nations any increased rights with this amendment; we're giving provinces the ability to walk away from first nations protected zones, such as what happened in Pictou Landing, where their connected water was poisoned for decades, if not generations.

To the officials, I'm wondering if my concerns are valid on this.

[Nelson Barbosa]

I think I've spoken a lot about my feelings on the bar being very high for provinces and territories.

Again, the entire provision is about creating a space for first nations and provinces and territories to come together to protect sources of water. We've talked about that a lot. There are already provisions in the legislation that talk about ensuring that first nations' voices are heard in that process through consultation and co-operation.

Creating co-development universally—first nations, provinces and territories—will certainly increase the bar for what that process will look like, including for first nations, but it may and could detract provinces and territories from coming into that space.

Ultimately, if one of the foundations of this legislation is to ensure that first nations can protect their waters, we may be undoing that with this amendment.

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

Can you say that last part again? We're....

[Nelson Barbosa]

We may be undoing one of the fundamental principles of this legislation.

[Lori Idlout, NDP, Nunavut, NU]

I'm sorry, but can you say that again?

[Nelson Barbosa]

I can, yes. We may be undoing, if this legislation....

Again, let's go back to the principles of this legislation. One is self-determination by first nations in protecting their waters on their lands. The second one is closing a regulatory gap, and the third is to create a space to align laws for first nations and for provinces and territories to come together to protect waters together.

By creating such a high bar for provinces and territories and first nations to come together in a co-developed way, we may be detracting or taking away one of the core, fundamental elements of this bill because of the nature of the engagement process, the co-development process.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Battiste.

We have a long and growing speaking list.

Next we have Mr. Zimmer, then Mr. Longfield, then Ms. Idlout, then Mr. Shields and then Mr. Lemire.

Go ahead, Mr. Zimmer.

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

Thank you, Mr. Chair.

I have a really simple question for Mr. Barbosa that goes back to this piece of legislation, since it's coming up more in the general comments around the legislation. Is Bill C-61 necessary to provide clean water for first nations?

[Nelson Barbosa]

No.

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

Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Zimmer.

We go to Mr. Longfield next.

[Lloyd Longfield, Liberal, Guelph, ON]

Thank you, Chair. Thanks for having me here as a guest at the committee.

It's a very interesting discussion. I'm reminded of a discussion I had with a NAN elder up in Sioux Lookout, where we were doing boil water advisory work together. He made the comment that “It's the paper mills and the mines, the poking holes in Mother Earth that causes the first problem.” This legislation intends to solve that by starting with the first principles of having clean water.

Having bars such that the indigenous people aren't able to negotiate clean water—such as putting the recommendation we're discussing right now on the table, saying that everybody has to be at the table, including the provinces—could not only impede the NAN from successfully gaining clean water, but could also cause the elder to lose people from his band to the employment in the paper mills and the mines, and so people aren't even able to work on clean water solutions.

I think that keeping the frustrations away from the first nations and making sure that we have a clear pathway for them to get to clean water is very important, so I won't be supporting this amendment for that reason.