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.
Acting Director, Legislation, Engagement and Regulations, Department of Indigenous Services
Of course.
In terms of first nation laws, that is in both paragraph 6(1)(a) and paragraph 6(1)(b), where the jurisdiction is provided through that law-making authority.
In terms of aboriginal rights to ensure that there's non-derogation so that rights are upheld over generations, that is also near the top of the bill. It's under “Rights” in clause 3, but there would have been some amendments made, I believe, also in subclause (2), by the NDP.
NDP
Lori Idlout NDP Nunavut, NU
Thank you for the clarification.
Since it's included in the “Jurisdiction” clause of the bill, when it comes to creating the framework, would the framework have to include “Aboriginal rights, lands and laws of each First Nation” because of what's included in clause 6?
Acting Director, Legislation, Engagement and Regulations, Department of Indigenous Services
Yes, the framework is not specific. It says, “among other things” in order to leave it as open as possible for consultation and co-operation with first nations.
I would say there are additional avenues as well. In terms of the framework, it's really about coming together, but individual first nations can also enter into agreements to exercise their rights through clause 23. There are multiple choices for first nations.
NDP
Lori Idlout NDP Nunavut, NU
Thank you for the clarification.
For me, because this is part of the framework that will need to happen, it would seem necessary to make sure it's something that first nations.... For example, NDP‑59 was submitted to us by the British Columbia Assembly of First Nations. If it seemed absent in other provisions and they saw it necessary to include as an amendment, wouldn't it seem important to ensure first nations are being heard on this clause in order to make sure they realize that?
Maybe, if it's not obvious to them that it's a choice they can make, adding this shows it is a choice they can make.
Acting Director, Legislation, Engagement and Regulations, Department of Indigenous Services
I appreciate the clarification.
How the funding framework is designed is for all parties to come together on, and it is open. The top of the provision says, “among other things” and can include the following, but that's to leave space. The intention, from a policy perspective, is to leave space for a multitude of voices among first nations rights holders, in terms of what funding needs are present on their lands for water services.
The secondary piece is more about whether specific first nations come together, or whether individual first nations enter into a funding arrangement to exercise rights. That's under section 23 already, but it gives a bit more flexibility for individual nations to take different approaches beyond the funding framework.
Liberal
The Chair Liberal Patrick Weiler
Thank you very much, Ms. Idlout.
While that conversation was going on, I double-checked. G‑4 made an amendment to clause 15, so this is under the water quality standards.
As amended, it will say:
The quality of water available on the First Nation lands of a First Nation must meet the drinking, cooking, sanitation, hygiene, safety, fire protection and emergency management needs of the First Nation, taking into account its cultural and spiritual needs and based on its current and projected water usage needs.
That's the passed amendment that was being referenced.
Ms. Idlout.
NDP
Lori Idlout NDP Nunavut, NU
I will just put this on the record: Even if NDP‑59 is not included in BQ‑20, it will still be an option for first nations to say that, when it comes to the framework, they will have the option of including the distinct cultural practices, aboriginal rights, lands and laws of each first nation because it's covered in the broad scope of what you just said.
Can you confirm this, please?
Acting Director, Legislation, Engagement and Regulations, Department of Indigenous Services
I can absolutely confirm that the phrase is “among other things”. It's not an exclusive list. It is inclusive of many things.
Acting Director, Legislation, Engagement and Regulations, Department of Indigenous Services
You're welcome.
Liberal
The Chair Liberal Patrick Weiler
Thank you very much, Ms. Idlout.
Is there further debate on the subamendment?
I'm not seeing any further debate on the subamendment to BQ‑20. I think we can move to a vote.
This is on your subamendment.
NDP
Liberal
The Chair Liberal Patrick Weiler
Great.
(Subamendment withdrawn)
This takes us back to the amendment.
Is there any debate on the amendment?
Mr. Melillo.
Conservative
Eric Melillo Conservative Kenora, ON
I warned you that I have a couple of questions. I'll try to go through them quickly here.
Looking at “(e.1) requirements relating to legal fees for various tasks relating to the day-to-day operations of water services”, I'm unclear on what exactly that would mean.
I'm curious about getting your thoughts.
Sébastien, if you want to comment, you can.
I'll also ask the officials what that would look like.
Acting Director, Legislation, Engagement and Regulations, Department of Indigenous Services
I appreciate the question.
There could be different components of legal fees for a first nation, as a first nation is an order of government in Canada, as they conduct business. One example could be around the creation of first nation laws and having lawyers review their laws, etc., before they come into force. Another example could be in terms of different practices with contracts, to make sure that contract law is all reviewed should the nation be entering into contracts to provide water services, for example.
Conservative
Eric Melillo Conservative Kenora, ON
Thank you very much.
This is my final question, I promise. Well, we'll see what the answer actually elicits.
Looking at the insurance, as I read proposed new paragraph 27(2)(h.1), this would not be any sort of liability insurance. It would be for the actual infrastructure itself.
Is that correct? Would that be what it's referring to?
Acting Director, Legislation, Engagement and Regulations, Department of Indigenous Services
That would be my read as well.
Liberal
The Chair Liberal Patrick Weiler
Thank you very much, Mr. Melillo.
Accordingly, let's move to a vote on BQ-20.
(Amendment agreed to [See Minutes of Proceedings])
It looks like it passed with unanimous consent.
I want to give a special thank you to Monsieur Lemire for combining all of these together. It means a number of things. BQ-21, BQ-22, BQ-23, BQ-24, BQ-25 and BQ-26 can't be moved. As well, NDP-57, NDP-58 and NDP-59 cannot be moved. As a result, we have moved through a number of amendments and are now at NDP-60.
Ms. Idlout, I'll hand the floor over to you to move NDP-60.
NDP
Lori Idlout NDP Nunavut, NU
Qujannamiik, Iksivautaq. Thank you, Chair.
Amendment NDP-60 was submitted to the committee by the British Columbia Assembly of First Nations. It would amend clause 27 in Bill C-61 by replacing lines 22 to 25 on page 15 with the following:
(3) The Minister’s funding allocation decisions under subsection (1) must be consistent with the principle that the funding for First Nations water services is to
Qujannamiik.
Liberal
The Chair Liberal Patrick Weiler
Thank you very much, Ms. Idlout.
NDP-60 is moved. I'll open it up for debate.
Just before getting to that, I'll note that if NDP-60 is adopted, NDP-61 cannot be moved due to a line conflict....
NDP-61 was withdrawn.
Mrs. Atwin, I see that you have your hand up. I will turn the floor over to you.
Liberal
Jenica Atwin Liberal Fredericton, NB
Thank you, Mr. Chair.
We've had a few discussions around “best efforts” with regard to Bill C-61. I believe it does set a high standard as well as aligns with legal precedent. Just to do a little bit of digging and bring it forward for your consideration, we did find that from a 1994 decision at the Supreme Court of British Columbia, Justice Dorgan determined, in her decision, that:
1. “Best efforts” imposes a higher obligation than a “reasonable effort”.
2. “Best efforts” means taking, in good faith, all reasonable steps to achieve the objective, carrying the process to its logical conclusion and leaving no stone unturned.
I think this is really strong language. She continued:
3. “Best efforts” includes doing everything known to be usual, necessary and proper for ensuring the success of the endeavour.
4. The meaning of “best efforts” is, however, not boundless. It must be approached in the light of the particular contract, the parties to it and the contract's overall purpose as reflected in its language.
5. While “best efforts” of the defendant must be subject to such overriding obligations as honesty and fair dealing, it is not necessary for the plaintiff to prove that the defendant acted in bad faith.
6. Evidence of “inevitable failure” is relevant to the issue of causation of damage but not to the issue of liability. The onus to show that failure was inevitable regardless of whether the defendant made “best efforts” rests on the defendant.
7. Evidence that the defendant, had it acted diligently, could have satisfied the “best efforts” test is relevant evidence that the defendant did not use its best efforts.
Finally, “best efforts” does not guarantee the result, but it requires the Government of Canada to make every effort to achieve that result.
This is the precedent that's been used by Canadian courts. Again, it helps offer us a process and platform for how we get there and where that standard of “best efforts” can be achieved, and again, where that onus is on proving whether or not those best efforts were actually put into place.
This made me feel a lot better as well. For those reasons, I think it's important we keep “best efforts” in the bill.
Thank you.
Liberal
The Chair Liberal Patrick Weiler
Thank you very much, Mrs. Atwin.
Is there anybody else who would like to weigh in and debate?
We have Ms. Idlout.
NDP
Lori Idlout NDP Nunavut, NU
Could we ask for that to be sent to us so that we can review it? I don't know if it's in reference to contract law or if it's in reference to a minister's obligation.