Thank you very much, Ms. Atwin.
G‑9 has been moved.
I'll open it up at this point for debate, should any member wish to make an intervention.
We have Ms. Idlout.
Evidence of meeting #134 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.
Liberal
The Chair Liberal Patrick Weiler
Thank you very much, Ms. Atwin.
G‑9 has been moved.
I'll open it up at this point for debate, should any member wish to make an intervention.
We have Ms. Idlout.
NDP
Lori Idlout NDP Nunavut, NU
I disagree with this amendment, because it takes away the ability of first nations to ensure that they can have action if their rights are not being upheld.
Liberal
Liberal
Jenica Atwin Liberal Fredericton, NB
I'd just like to hear a response from our officials on that interpretation.
Senior Counsel, Legal Services, Department of Crown-Indigenous Relations and Northern Affairs and Department of Indigenous Services, Department of Justice
Certainly. This is actually intended to protect first nations. If a first nation governing body acted in good faith and it was sued, the idea here is that the first nation governing body would be protected from lawsuits. It's really in the best interests of first nations. The goal of this is to protect them.
Senior Counsel, Legal Services, Department of Crown-Indigenous Relations and Northern Affairs and Department of Indigenous Services, Department of Justice
In subclause (3),“His Majesty...”, there's a similar principle. It basically mirrors the protection of first nations. So, if the Government of Canada has acted in good faith, then it also is protected in a mirror image to first nations.
NDP
Liberal
Jaime Battiste Liberal Sydney—Victoria, NS
This amendment is directly from some of the fears that first nations have stated around liabilities being passed onto first nations. If we remove that, then we're removing the protection for first nations. That is my interpretation.
I'm wondering if the officials can tell me if the first nations are protected against having to take on this liability, without this portion that our friend from the NDP would like to have removed.
Senior Counsel, Legal Services, Department of Crown-Indigenous Relations and Northern Affairs and Department of Indigenous Services, Department of Justice
If you're talking about clause 3 removal, it would not affect first nations directly, but the idea is that there is an obligation on both parties, first nations and the Government of Canada, to act in good faith and to ensure that they're carrying out their duties properly. If they act in bad faith, for example, there would be no coverage. If the Government of Canada acts in bad faith, it could be sued. It would have no protection from liability.
The idea is to indicate that as long as the government is acting in good faith, it's protected from liability. In a similar situation with respect to first nations, as long as they're acting in good faith, they're also protected from liability.
Director General, Community Infrastructure Branch, Department of Indigenous Services
Maybe I could just add that, from a policy perspective as well, the latter part of this paragraph, paragraph 3, says, “The Government of Canada must make best efforts to provide”, noting that there are a variety of opinions on best efforts. It also places an onus on Canada to demonstrate that it has made those best efforts in order not to be liable in this context. It entrenches this idea that Canada must make good on the elements that are entrenched in the bill as it stands.
Liberal
Bloc
Sébastien Lemire Bloc Abitibi—Témiscamingue, QC
Thank you, Mr. Chair.
The reason G‑9 is being proposed is that the elements it seeks to add to the bill were not part of the bill at the outset, when it was drafted. What elements of protection for first nations does this amendment add to the bill that were not there at the outset? I'd like to understand why we want to add this now.
We also know that there are still boil water advisories and other water-related issues. Some individuals have already been compensated. There is no risk of prosecution yet. So I'd like a clearer understanding of the consequences for the individuals concerned.
Senior Counsel, Legal Services, Department of Crown-Indigenous Relations and Northern Affairs and Department of Indigenous Services, Department of Justice
The difference here is that the bill, as it reads now, protects the employees and people hired by first nation governing bodies.
The amendment would also add protection for first nation governing bodies themselves. The way it's worded, it does refer to “employees”, but that's because there is vicarious liability when you have negligence. The idea is that if employees are sued, there would be no liability for the first nation governing body because of the acts of those employees, and also no personal responsibility on the part of the employees themselves.
Liberal
Liberal
Jenica Atwin Liberal Fredericton, NB
I just want to be really clear that this amendment will in no way take away the right of first nations to sue the federal government in the case of best efforts not being met, for example, or in any kind of scenario, and that they still have the power to do so.
Director General, Community Infrastructure Branch, Department of Indigenous Services
That is correct. Arguably, the entrenchment of enshrining into domestic law the right of first nations increases the watermark—no pun intended—for Canada to take actions as part of this bill.
Liberal
NDP
Lori Idlout NDP Nunavut, NU
Just keeping in mind that I have to go to the House to do my S.O. 31, I do have some questions.
Regarding water laws in Canada, not considering the impacted first nations, where in other legislation in Canada do these kinds of provisions exist?
Senior Counsel, Legal Services, Department of Crown-Indigenous Relations and Northern Affairs and Department of Indigenous Services, Department of Justice
In Ontario, in provincial legislation, there is protection for employees and water operators of the government, for example.