Evidence of meeting #133 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 amendment.
A video is available from Parliament.
NDP
Lori Idlout NDP Nunavut, NU
I was seeking clarification on the differences between PV-4 and NDP-51, because I do see a difference. I don't know what the line conflict is. Could we get that explanation, because to me PV-4 is clearly setting a higher standard of what the minister must do?
In addition, NDP-51 talks about standards that are in these specific areas outlined in (a), (b), and (c). Can the witness clarify the comparison between the two?
Acting Director, Legislation, Engagement and Regulations, Department of Indigenous Services
The standards section in the bill, as debated by this committee, provides for the choice in terms of first nations and the application of standards, so it could also potentially be with NDP-51. It does say, “as set out” in those particular sections, but it might add an additional prescription that's not already covered in the standards section.
Liberal
Bloc
Sébastien Lemire Bloc Abitibi—Témiscamingue, QC
I just want to say that we'll be supporting amendment PV‑4.
Liberal
The Chair Liberal Patrick Weiler
Thank you.
I'm not seeing any further interventions, so we can go to a vote.
Shall PV-4 carry?
(Amendment negatived: nays 9; yeas 2 [See Minutes of Proceedings])
This takes us to NDP-51.
I'm sorry to interrupt. I will suspend briefly to double-check something.
Liberal
The Chair Liberal Patrick Weiler
Colleagues, we're back. I'm sorry for that brief pause.
Ms. Idlout, I'll turn the floor over to you.
NDP
Lori Idlout NDP Nunavut, NU
Thank you.
I think, from my line of questioning, it's already clear what NDP-51 attempts to do, so I won't summarize.
I'll just move NDP-51.
Liberal
The Chair Liberal Patrick Weiler
Thank you, Ms. Idlout.
NDP-51 is moved. I'll mention that, if NDP-51 is adopted, both NDP-55 and PV-5 cannot be moved due to a line conflict.
With that, I'll open it to debate. I know we've debated related motions here.
I'm not seeing any hands up. I'll give you a short moment. If there are no more interventions, we can move to a vote.
(Amendment negatived: nays 9; yeas 2 [See Minutes of Proceedings])
This takes us to NDP-52.
l'll open up the floor to Ms. Idlout.
NDP
Lori Idlout NDP Nunavut, NU
Qujannamiik, Iksivautaq.
NDP-52 seeks to amend clause 26 by replacing lines 31 and 32 on page 14 with the following:
First Nation governing body, must ensure that access to clean and safe drinking water that meets the standards set out in sections 14 and 15
It would also replace line 2 on page 15 with:
ings located on the First Nation lands of the First Nation and that wastewater effluent treatment meets the standard set out in section 16 so that all such residents, occupants and users can benefit from it.
Qujannamiik, Iksivautaq.
Liberal
The Chair Liberal Patrick Weiler
Thank you very much, Ms. Idlout.
I just want to notify members that if NDP-52 is adopted, PV-5 cannot be moved due to a line conflict.
With that, I'll open the floor to debate. We've debated related issues.
I don't see any hands up. Let's move to a vote.
Shall NDP-52 carry?
(Amendment negatived: nays 10; yeas 1)
That takes us to PV-5, which is deemed moved. I'll open the floor to Mr. Morrice to speak to this.
Green
Mike Morrice Green Kitchener Centre, ON
Thank you.
I'm speaking to this on behalf of our colleague Ms. May. Having failed to improve the responsibility earlier in this section, this amendment seeks to increase the obligations in a different manner later on in the section by adding words at the end of the sentence.
Currently, the bill still reads:
must make best efforts to ensure that access to clean and safe drinking water, whether from a public or private water system, is provided to all residents, occupants and users of buildings located on the First Nation lands of the First Nation.
The amendment would add:
in a manner that, as a minimum, meets the obligations set out in sections 31, 33 and 34.
Those sections follow in this bill.
Liberal
The Chair Liberal Patrick Weiler
Thank you very much, Mr. Morrice.
We'll open it up for debate. I see Mrs. Atwin has her hand up.
Liberal
Jenica Atwin Liberal Fredericton, NB
Thank you, Mr. Chair.
I thank Ms. May for bringing this forward as well. She's one of my very esteemed colleagues.
I'm very supportive of this, especially because it really speaks to a written brief we received from the first nations advisory committee, but I would like to put forward a subamendment. I believe it's been sent to our clerk and hopefully distributed.
It supports the amendment and reads:
ings located on the First Nation lands of the First Nation in a manner that meets the obligations set out in sections 31, 33 and 34.
Again, it supports adding that additional clarifying language that connects to those funding obligations in the co-developed funding framework.
Liberal
The Chair Liberal Patrick Weiler
Thank you very much, Mrs. Atwin.
We're going to suspend very briefly to make sure we can have that circulated to everybody, and then we can continue the debate at that point.
Liberal
The Chair Liberal Patrick Weiler
Colleagues, we're back.
The amendment was circulated to all members' emails. While it was a very simple thing to change in English, it was a bit more complicated with the translation.
You should have that now.
I'll turn the floor back to Ms. Atwin, if there's anything more she'd like to say on this.
Liberal
Jenica Atwin Liberal Fredericton, NB
Just to clarify, it's just taking out “as a minimum”. It's pretty simple.
Liberal
NDP
Lori Idlout NDP Nunavut, NU
I need to ask a question about clause 26 because it's talking about “best efforts”, and I still don't really understand the analysis behind it.
When I did a quick search in CanLII, all of the case law related to “best efforts” speaks only to contract law cases, and I wonder how “best efforts” is being interpreted in this legislation to be so high.
Senior Counsel, Legal Services, Department of Crown-Indigenous Relations and Northern Affairs and Department of Indigenous Services, Department of Justice
Yes, “best efforts” is a very high standard.
You're right. A a lot of “best efforts” references are in contract law, but it's not exclusive to contract law. Basically, in this situation, the minister would have to take every possible step she could to ensure safe drinking water on first nation lands. She would have to work with her colleagues in cabinet. She would work with officials to ensure safe drinking water was delivered.
In terms of standards, in law there are “reasonable efforts”. That was used in the settlement agreement. It's a lower standard. Still, you have to take significant steps to achieve a goal.
In “best efforts”, you have to make your maximum effort to achieve a goal. If you do not achieve that goal, you would not necessarily be penalized for that, but if you did not make every attempt to achieve the goal in this, the context of this legislation, then the minister would be failing in her obligation. It is slightly lower than “must ensure”, but it is a very high standard for the minister to have to achieve.
NDP
Lori Idlout NDP Nunavut, NU
Can you describe what that “slightly lower” means? I think it's pretty clear by now that I've been here fighting for first nations rights. First nations have repeatedly asked us to make sure that Bill C-61 is better for them. I know that if we weren't able to get “best efforts” replaced with “must”, it would be very difficult for us to persuade first nations that we're doing our job—because of a “slightly lower” standard.
I wonder if you could better explain to us how “best efforts” is such a high standard when it comes to first nations water—first nations water where we need to reconcile what this government has done to first nations to have them end up in conditions and situations where they might for another 50 years live with boil water advisories, and where first nations will have to most likely negotiate with provinces and territories over decisions that should have remained under first nations authority.
I really need a clearer understanding of why “best efforts” is such a high standard, when first nations are very clearly asking for amendments to have “best efforts” changed to “must”. When the government stole that authority, not only did it do it by putting first nations into bands but by forcing them to live under the Indian Act and then keeping them suppressed by underinvesting in them for decades, for hundreds of years.
How can we possibly persuade first nations that “best efforts” is something that is acceptable to anyone?
Acting Director, Legislation, Engagement and Regulations, Department of Indigenous Services
I appreciate the question.
Read in the context with other kinds of provisions, and as well as with what's already been debated by this committee, for example, my colleague here mentioned the recognition of a human right to safe drinking water on first nation lands. That would be in conjunction with this provision as well and would be a stronger piece, recognizing that human right.
In terms of “best efforts”, practically, it means every single possible effort without having significant impacts on Parliament's ability to allocate funding, in cases of emergencies, for instance. It's every single effort with that one piece, in terms of the funding by Parliament, being the role of Parliament for all parties to debate.
NDP
Acting Director, Legislation, Engagement and Regulations, Department of Indigenous Services
My sense of it would be that replacing it with the word “must” might impact Parliament's ability to allocate funding.
Liberal
The Chair Liberal Patrick Weiler
Thank you very much, Ms. Idlout.
I see that Ms. Atwin has her hand up. We'll go to her next.