Indigenous and Northern Affairs Committee on Nov. 25th, 2024

[The Chair, Liberal, Patrick Weiler]

I'm going to call this meeting to order.

Welcome to meeting number 133 of the House of Commons Standing Committee on Indigenous and Northern Affairs.

As always, we begin by acknowledging that we are gathered on the ancestral and unceded territories of the Algonquin Anishinabe peoples. I want to express gratitude that we're able to do the important work of this committee on lands that they've stewarded since time immemorial.

I also want to do a special welcome today. We have a delegation of students from Nunavut Sivuniksavut visiting. Welcome.

[Some hon. members]

Hear, hear!

[The Chair, Liberal, Patrick Weiler]

We also have a number of members joining the committee today.

Mr. Steinley and Mr. Vidal, thanks for filling in today.

In the spirit of being efficient, there are a couple of things I want to mention pursuant to the motion that we passed last Thursday.

I am going to need to pause briefly at routine proceedings so I can table that report in the House virtually. I will pause briefly when we get to that.

I also want to mention this: Thank you to the member who noticed that tomorrow's meeting was due to be in audio only. That's since been rectified. Tomorrow, the meeting, which will be a very long one, will be televised from 10 a.m. to 10 p.m., or whenever we will finish.

With that, pursuant to the order of reference of Wednesday, June 5, 2024, the committee will resume consideration of Bill C-61, an act respecting water, source water, drinking water, waste water and related infrastructure on first nations lands.

To help us with clause-by-clause consideration of Bill C-61, I would now like to re-welcome our witnesses here today. We have Nelson Barbosa, director general, community infrastructure branch, from the Department of Indigenous Services, and Rebecca Blake, acting director, legislation, engagement and regulations. We also have Douglas Fairbairn, senior counsel from the Department of Justice.

I want to remind members again that the amendments are confidential, and subamendments are to be shared electronically or on paper in both official languages and sent to the clerk for distribution.

(On clause 22)

With that, we can resume clause-by-clause consideration. We were at CPC-6, which is in clause 22.

Just so you know, I will have to rudely interrupt at some point to pause. Until we get to that point, I will open it up to the Conservative Party to discuss CPC-6, should they be willing to move that.

Mr. Vidal, I'll turn the floor over to you.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Chair.

My understanding is that, because I'm subbing for Mr. Melillo today, it's my responsibility and privilege to move his potential amendment. On his behalf, I would like to move CPC-6, that Bill C-61, in clause 22, be amended by replacing line 24 on page 13 with the following:

subsection (1), and any such regulations must be co-developed with that body.

Chair, you're right. I am a visitor today, but I have some history on this committee as most people are aware. I have just a couple of comments in support of this amendment on behalf of Mr. Melillo. Basically, this amendment would ensure that these regulations and whatnot are truly co-developed. There have been a number of other amendments earlier in the process on a number of other sections of the bill with similar amendments made, and I think they have been supported for the most part. We're going to ask that the committee members support this amendment to ensure that we really do get legislation and regulations that are truly co-developed.

I don't know whether I'd call myself a newcomer or an oldcomer coming back to the committee, but it's interesting to me that in preparing for this there's been a lot of language around co-development and how this bill was co-developed with nations across the country, with organizations representing nations across the country. However, when I look at this, there are 130-plus amendments being proposed. A number of them have actually come from individual nations, from regional organizations representing nations, even from the AFN.

I guess my challenge would be in the drafting of this legislation. If it was truly co-developed, why do we have 100-plus amendments being brought forward and a number of them by individual nations and by organizations representing regional organizations, or the national organization, the AFN? I think it stands to reason that we support the idea of adding language to make this truly co-developed, to make sure that the individual nations that are impacted by this legislation have a say in the process and in the regulations that impact them. I think that's the purpose of this amendment as I see it.

I will leave it at that, but I just ask for member support in making this legislation truly co-developed.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Vidal. It's great to be on this committee with you again. I know we were both members of this committee a couple of years ago. Welcome back.

With that, I'll open it up to debate on this motion. I see Mr. Battiste has his hand up first.

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

When reading the actual portion of this and talking about the minister's enforcement, it says, “If requested to do so by a First Nation governing body, the Minister may”. When we're looking at adding an additional layer of bureaucracy and saying that it must be co-developed, to me it seems like this only goes forward if the first nations governing body actually asks the minister to do so in regulations. It requires the consent and approval of and actual action by the first nation to action this portion of the legislation.

[The Chair, Liberal, Patrick Weiler]

I'm afraid I will have to suspend very briefly.

It was a false alarm. I'm calling the meeting back to order. You have my apologies for that.

I'm actually going to have to suspend in about five minutes. Something unusual was presented here.

Mr. Battiste, I'll turn it back over to you.

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

To the youth in the room, you see, even when you grow up and become elected, they'll still cut you off when they want you at the front of the class.

I think where I was going was that it seems that the only way that this clause gets actioned is if the first nations governing body is requesting it. To me, that actually is a higher threshold above the idea of co-developing, because it requires a first nations governing body to take some action to request that the minister do that.

Is that a somewhat accurate reading of how this particular clause of the legislation comes about? Do we need the extra layer of bureaucracy to co-develop something that's actually being asked for by the first nation itself?

[Nelson Barbosa, Director General, Community Infrastructure Branch, Department of Indigenous Services]

Thanks for the question. It's good to be back.

Yes, I think that would be an accurate interpretation. In order to be expeditious, we've covered many of these concepts before, so I'll just go over them briefly. I think in previous meetings in the past we talked about a better alignment with the words “consultation and cooperation” found in UNDRIP, and a bit on the ambiguity on what the litmus test for understanding what co-development means, particularly in a legislative context. Those have been two periods of caution on which we've had conversations over the last couple of weeks.

Also, in terms of this amendment, it says it “must be co-developed with that body.” If you just read the text, it says, “First Nation governing body of the First Nation”, which I assume means the first nation, but then it also says, “and with the government of the province or territory”. I think maybe this sounds like co-developing with that body, meaning the first nation, but it does say “and”. There could be interpretation of co-development with provinces and territories, which we talked about at length at the close of our last meeting.

I would concur about the cascade of consistency of terms—“consultation and cooperation”—adherence to UNDRIP, previous conversations we've had with provinces and territories, and, in my mind, reading this text as an official, some ambiguity on what that body means in reference to a full phrase.

Thanks.

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

In following up, there are some communities out there that don't have the capacity to work on co-development. If I'm a first nations community that has asked the minister to take on something around protection zones in this enforcement criteria, for some communities that don't have the capacity to work with federal officials on co-developing something, instead of just asking the minister to do something in a BCR, could this extra portion about co-development add delays to communities without the capacity to negotiate or co-develop something around protection zones?

[Nelson Barbosa]

Thanks for the question.

I think it could. Ambiguity aside, again that is a significant bar and a potential significant hurdle with a lack of clear definitions. It certainly could contribute to lack of implementation or delays.

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

For those reasons, I think our government must vote no to that.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Battiste.

Next I have Mr. Vidal, then Mr. Shields and then Ms. Idlout.

Just so you are aware, I'm going to interrupt, probably, in the next two minutes or so.

Mr. Vidal, go ahead.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Mr. Chair. I'll try to be quick and be done so you have a nice break in your two-minute gap here.

I would respond that this particular clause in the legislation is entitled “Consultation”. The language of the clause is:

The Minister must consult and cooperate with a First Nation governing body of the First Nation and with the government of the province or territory in which the protection zone is located before making

Our amendment adds onto this that “such regulations must be co-developed with that body”.

Without being too blunt, in my experience, the minister's and this government's response to consultation and co-operation has not been, I would say, stellar. Rather than using my opinion of that, let me read you a couple of quotes. One is from the Chief of Onion Lake Cree Nation, which is literally a couple of hundred kilometres from where I live. He says—

[The Chair, Liberal, Patrick Weiler]

I'm sorry, Mr. Vidal—

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

You're going to do it. I'm sorry. I wasn't fast enough.

[The Chair, Liberal, Patrick Weiler]

I'm going to have to briefly suspend here.

[The Chair, Liberal, Patrick Weiler]

We're back in business.

I apologize for that, Mr. Vidal. As you can see, it's definitely business related to the work of this committee. I'll turn the floor back over to you, where you left off.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

I was about to quote a couple of people who speak to this need for true co-development and, maybe, the lack of actual consultation and co-operation. We're just trying to ensure that happens.

Chief Henry Lewis from Onion Lake Cree Nation was at committee on October 3—just recently—and he said:

Onion Lake Cree Nation has protocols outlining consultation and what requirements governments and industry must follow when engaging us through our own process. This has not been followed.

I'm not going to read all these other quotes, but Grand Chief Alvin Fiddler wrote:

We acknowledge that some First Nations have had opportunities for input into the drafting of this legislation, but we do not agree that this legislation has been co-drafted.

In September, Chief Billy-Joe Tuccaro from Mikisew Cree First Nation said, “there has been absolutely no consultation in regard to this bill that's being rammed down our throats.”

My point in reading these quotes is that this is not my opinion as to the lack of consultation and co-operation. The reason we're trying to add some language and substance to this part of the legislation is that we ensure the parties affected by the legislation are, in fact, included in the creation of regulations in the legislation. That is my push-back as to why I believe this amendment is extremely important.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Vidal.

Next I have Mr. Shields, then Ms. Idlout and then Ms. Atwin.

[Martin Shields, Conservative, Bow River, AB]

Thank you, Mr. Chair.

I appreciate the comments you're making about concerns over adding layers. I mean, the legislation could have been simplified and we could have been working at drinking water much quicker, but it's much more complicated.

When we get more complicated, there's the comment that maybe some nations don't have the ability to work through the process of the regulations, but in my mind, if you don't make that attempt at the regulations.... I've been around a long time. I've seen legislation provincially and federally—a lot—but we all know what it comes down to is the regulations. The regulations are the pieces that implement. That's a critical piece.

If we're going to have this piece of legislation with some other parts in it, I think the regulations are a critical piece. At least you need to be able to say to each nation...to give them the opportunity to say yea or nay to wanting into that, or if there's a way that they can do it through different associations to say, “This is a template that others have used. Would you like to be in on this conversation?”

You may not have developed them yourself. That happens a lot in sharing when people work on regulations. I've seen it a lot of times where smaller communities just don't have those resources, but they depend on their associations or they work with their neighbours to develop that skill set to work with in response to regulations.

In my mind, if the legislation is built with the layers that are in it, we don't want people at the end of it—a nation—to say, “I didn't get a chance to have my say. I didn't get a chance to react to those regulations.” This is a once-in-a-lifetime piece of legislation, and that, to me, says it's important that everyone has their say. I think there are ways to support all nations in different mechanisms so that they feel they've had their input.

I understand your thoughts on creating another layer and all the bureaucracy that may go with it, but I think we have a lot of nations in this country that are really looking at this as something that's going to make a change in their nations, and the regulations are how it's implemented.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Shields.

We'll go to Ms. Idlout.

[Lori Idlout, NDP, Nunavut, NU]

Unnukkut. Thank you.

I am particularly missing the interpreter I normally have, because it would have been lovely to speak in Inuktitut with the Nunavut Sivuniksavut students here, whom I welcome as well. It's so good to see them here.

Regarding CPC-6, I do support it and wanted to echo as well what our colleague Gary was saying about the lack of true co-development, as we've heard from first nations. I recall as well that when we had department officials appearing before us as witnesses, I asked them how many of the first nations in Canada would be impacted by this legislation, and their answer was that about 570 to 580 first nations would be impacted by this bill.

I then asked them, of those up to 580 or so, how many were engaged in this so-called co-developed process. Their answer was only a hundred and something, and when my staff at the time did the math, that resulted in only 30% of the first nations who will be impacted by this bill having been engaged in this so-called co-developed bill.

I absolutely agree with the Conservatives and with this amendment including the co-development at this stage, where first nations are afforded the opportunity to truly be engaged in decision-making surrounding water and surrounding their jurisdiction and whatever the regulations might be, given that up to this point they haven't been engaged enough.

Even if we hear that this has been co-developed, the feedback we heard from first nations was that there were too many left out of the process. Indeed, earlier this afternoon, I met a chief of a first nation who hadn't even heard of Bill C-61. I think that if there is a first nation in Canada that has not even heard of Bill C-61, there is a major failure in terms of not including first nations to this point. As such, I'll be supporting this amendment.

Qujannamiik.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Ms. Idlout.

We'll be moving to Mrs. Atwin next.

[Jenica Atwin, Liberal, Fredericton, NB]

Thank you very much, Mr. Chair.

We've gone down this road many times.

First, I'd like to know where specifically that amendment came from, to be honest. I understand what we're trying to achieve, and I think we all want to achieve that. I'm wondering about the specific amendment proposed—where it's specifically found in the bill and if it is going to achieve the outcome that you think it's going to achieve. We're hearing from our legal team. We're hearing from those who are experts in this that it could actually slow down what we're trying to achieve. That's my concern.

I would also like to highlight that I wish it were truly a co-developed bill. We know that it was as close to co-developed as we've ever seen with legislation in Canada, so that, I think, needs to be clarified as well.

I'd love to get there, and we need to get there. Again, I would love to see what the best-case scenario is and what the worst-case scenario is in terms of how this amendment would impact the overall bill.