Indigenous and Northern Affairs Committee on Feb. 5th, 2024

[The Chair, Liberal, John Aldag]

Good morning, everyone. I call this meeting to order.

Welcome to meeting 93 of the House of Commons Standing Committee on Indigenous and Northern Affairs. We recognize that we meet on the unceded and traditional territory of the Algonquin Anishinabe peoples.

Colleagues, before we get into the continuation of the clause-by-clause review of Bill C-53 today, I'm going to flag for us that the call is out for upcoming travel for committees. The travel period will be April to June, and our deadline for submission is February 16. I'm not going to take any time on that today, but I'm just planting the idea that the deadline is coming up. Should we finish early today, I may come back to it before we adjourn to see if anybody has anything they'd like to put forward for our clerk and the logistics team to cost out, which we could submit for the Liaison Committee's consideration. Just give some thought to possible travel from April to June, this spring, and the deadline, February 16.

With that, we have a couple of new faces around the table today. I'd like to welcome Michelle Rempel Garner and Mr. Melillo. Welcome. It's always good to have you here.

Today we are continuing with Bill C-53, an act respecting the recognition of certain Métis governments in Alberta, Ontario and Saskatchewan.

I'd like to welcome back our witnesses. We are, hopefully, drawing near the end of the time we'll be spending with you, but we appreciate your continued presence and expertise in helping us move through this piece of legislation.

We're going to pick up where we left off. Where we are right now is with a couple of stood clauses, so we're going to resume with clause 2.

(On clause 2)

CPC-2 was adopted. Therefore, we created a new clause, clause 4.1.

Now we have CPC-1, which is Mr. Schmale's amendment. I'll ask Mr. Schmale if he'll move CPC-1.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Thank you, Chair.

Yes, I move CPC-1.

[The Chair, Liberal, John Aldag]

Is there any discussion on CPC-1?

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

Can we hear it? It is my understanding that we are going back to the taxation ones that we stood. There was an amendment created for this specific one. Just tell me where we are in the overall scheme. We finished off the schedule, and now we're coming back to which clauses?

[The Chair, Liberal, John Aldag]

First of all, the clauses that were stood are these: We stood clause 2—that's the one we're on now—and then we stood clauses 14 and 15 as well. After clause 2, we'll come back to clause 14. Then we had a new clause, clause 14.1, brought about by CPC-5.01. Then we'll go to clause 15, which was also stood. Those are the ones we need to deal with.

Then we'll get into the final bit of business for today, some of the administrative things: the short title, the preamble—we still have to deal with CPC-11—the title, and the bill: “Shall the bill carry? Shall the chair report the bill? Shall the chair order a reprint of the bill for the House at report stage?” That's the business that's left to get through today.

We are on CPC-1. If you don't have it, it was about replacing line 28 on page 2 with the following:

treaty means, except in sections 4.1 and 5, a treaty that is entered

That's the clause before us at this point.

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

Okay. That looks good. We'll support that.

[The Chair, Liberal, John Aldag]

Is there any other discussion on CPC-1?

(Amendment agreed to: yeas 10; nays 0)

NDP-1 was identical to CPC-1. Because CPC-1 was moved and adopted, NDP-1 is not in order.

Shall clause 2 as amended carry?

(Clause 2 as amended agreed to on division)

(On clause 14)

For those of us who were here, there was a taxation discussion. There were some questions about an amendment. Mr. Viersen has put forward CPC-5.01, but we are on clause 14.

Is there any discussion?

(Clause 14 agreed to on division)

Next is Mr. Viersen's amendment, CPC-5.01. It would be a new clause, clause 14.1.

I would ask if anyone wants to move CPC-5.01.

It reads:

14.1 For greater certainty, nothing in this Act is to be construed as allowing for a treaty to be entered into by a Métis government and His Majesty in right of Canada that recognizes any right or claim in respect of land or resources.

Ms. Idlout.

[Lori Idlout, NDP, Nunavut, NU]

Qujannamiik. I believe this is the amendment that we discussed after our discussions about tax treatments, and it became particularly important, just having learned of some things.

What we've discovered during this whole process is that the Liberals didn't do a great job consulting in the beginning with first nations and with other Métis, and they tried to rush this bill forward, resulting in more questions being raised. We heard a lot of testimony from first nations and Métis regarding the concerns about what this bill could do regarding lands, territories and resources. I made a similar amendment that I thought we would have a chance to debate, but we didn't get to it. Then we heard later, as well, that the federal government is funding the Métis Nation of Ontario to secure lands in Ontario.

I think we need to debate this with all honesty and the absolute assurance that we've been seeking about lands, territories and resources, and that this bill really is about internal governance only. I think it's so important. If this is really about internal governance only, including this clause will help alleviate a lot of the concerns that this is going beyond internal governance, so I'm going to be in support of this amendment.

[The Chair, Liberal, John Aldag]

Thanks, Ms. Idlout.

The procedural issue we have is that we haven't had this amendment moved yet.

Mr. Viersen is not here. Any member is able to move it, so I'll put the question out again if any member would like to move CPC-5.01.

[Eric Melillo, Conservative, Kenora, ON]

I'll move it.

[The Chair, Liberal, John Aldag]

Okay. It is moved.

Ms. Idlout, you spoke in favour of it.

Is there anybody else?

Mr. Carr, I'll go to you next on my list, and then to Mr. Battiste.

[Ben Carr, Liberal, Winnipeg South Centre, MB]

Thanks, Mr. Chair.

Could we get commentary from Mr. Schintz, Mr. McLaughlin or Ms. Redmond on this, for a bit of clarity? What I'm particularly interested in is whether there is any repetition or redundancy here in terms of the non-derogation that we've spoken about at this committee prior to this point. That would be the first question.

Then, depending on your answer, I may have a follow-up question in terms of what this may prohibit in the future, should the legislation pass, in terms of the ability of these governments to expand and evolve the nature of the relationship with the government.

[Julia Redmond, Legal Counsel, Department of Justice]

This provision, this amendment, would do something a bit different from those non-derogation provisions that the committee has already considered and adopted in the clause-by-clause review so far. This would place a restriction on what could be included in treaties in the future, so it would limit the scope of those treaties. The non-derogation provisions discuss the impact on the rights of others and say that there won't be any impact on the rights of others, so this is doing something a bit different.

[Ben Carr, Liberal, Winnipeg South Centre, MB]

In that same line of questioning, is there precedent for that in previous legislation involving treaties? If I understand correctly, essentially this is predetermining the outcome of what a future treaty agreement could look like between these governments and the Government of Canada. If I've understood that correctly, please let me know, and if so, is there precedent for that in other legislation involving treaties?

[Julia Redmond]

To my knowledge, there's no such provision in any other implementing legislation for a treaty or self-government agreement. Mind you, this is a little bit different as implementing legislation goes. Often, there would be a treaty in hand for the committee to look at, at the same time as a bill coming into force, so there might not have been a need for that kind of discussion before, but to my knowledge no such provision exists in other legislation.

[Ben Carr, Liberal, Winnipeg South Centre, MB]

I'm just wondering, Mr. Schintz—I don't know if this should be for you—are there any concerns that you feel the department or stakeholders may have vis-à-vis the limitations that this would impose should it be adopted in the legislation?

[Michael Schintz, Federal Negotiations Manager, Negotiations - Central, Treaties and Aboriginal Government, Department of Crown-Indigenous Relations and Northern Affairs]

I agree wholeheartedly with everything Ms. Redmond has said. The department has increasingly taken the position that treaties are intended to have the space to evolve over time as relationships evolve, and so, while it's absolutely accurate to say that the self-government treaties that are contemplated to be implemented by this legislation, if it is given royal assent, are entirely limited to self-government, as we've testified before, they are also intended to create space for further conversations over time. With each subsequent set of conversations, there are consultation obligations. There's the obligation that any jurisdictional discussion that is had will not have adverse impacts on other indigenous groups and governments.

This provision—which, as Ms. Redmond said, is not seen in any other implementing legislation that I'm aware of—is limiting in a way that is new and, I would say, somewhat cuts against the department's position on these treaties needing space to evolve over time.

[Ben Carr, Liberal, Winnipeg South Centre, MB]

I have one more question on that. This would be for Ms. Redmond, I think.

If it is adopted, would that be an area these governments could challenge on a legal basis, that there is something that would prohibit the ability for this to evolve? Is there some type of legal basis on which indigenous governments are protected from legislation or policy that would limit the ability for a treaty to evolve? Could there be some type of legal ramification from that?

[Julia Redmond]

The very vague answer is that anyone can challenge any legislation at any time; the chances of success are a different question.

Implementing legislation for treaties, as I've described before, is usually fairly straightforward. We've seen a lot of these kinds of standard provisions in this same bill, but otherwise they don't normally get into more detail about what would be included in the treaty because, oftentimes, the treaty that is being implemented by a particular statute has already been drafted and signed by the time that implementing bill comes before Parliament. It's a tough question to answer, in that this is a bit of a different process from what we've sometimes seen before with implementing statutes for treaties.

[Ben Carr, Liberal, Winnipeg South Centre, MB]

You said there are two different things, and I appreciate that: There is a difference between the ability to challenge and the likelihood of success. In your legal opinion in looking at this, do you see a high probability of a legal challenge being accepted on the basis of what's in this amendment?

[Julia Redmond]

I would say that gets into my giving legal advice to the committee, which, unfortunately, I am not in a position to do.

I would reiterate that this kind of provision would be novel in implementing legislation, and that would be something to consider in moving forward with that.

[Ben Carr, Liberal, Winnipeg South Centre, MB]

Thank you.

Thanks, Mr. Chair.

[The Chair, Liberal, John Aldag]

Mr. Battiste, you're next on my list.

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

Thank you.

I have two questions, really.

Throughout this legislation and these amendments, whenever lands or resources have been discussed, we've consistently stated that it's out of the scope of this legislation, because nowhere in the legislation does it talk about lands and resources. I'd say that about three or four times we've voted that this was out of scope because of that. I'm wondering how it is that now, in the last day of this, under a taxation clause, we're looking at adding an amendment that would possibly stop any kinds of future discussions or the evolving of a treaty.

I'm not a Métis person. I'm a first nations person, but I would have deep problems with members of this committee deciding what I, in my future, could negotiate with the Government of Canada. It seems deeply paternalistic, deeply problematic. While we have not talked about lands and resources in the past—and we've made sure we have really strong non-derogation clauses to ensure we're not infringing on first nations rights, resources or lands—this would take an additional step towards telling Métis what they could negotiate with our government in the future. For our committee to believe that we have the ability to do that, I think, is an affront to the Constitution, which doesn't create rights; it recognizes and affirms that these rights have existed all along.

Just to get ahead of ourselves a bit with the land back study, which I was delighted to read, we heard from the Métis about the land that they were dispossessed of with Métis scrips, some of the land claims they were promised in Saskatchewan and parts of Alberta. We'll be discussing that later on and making recommendations on what the Métis should be doing about getting their land back in terms of what was promised to them in original scrips—which are similar to treaties. This committee is getting in front of all that, saying that we as a committee believe we know best what this government and the Métis should be negotiating in the future and putting that in a taxation clause at the end of it.

I want to hear why this is admissible from our people who are here, but also from our technicians, our legal folks. What are their thoughts on our committee telling the government and the Métis people what they can negotiate in the future as a throw-in clause in this part of the clause-by-clause?

[The Chair, Liberal, John Aldag]

I'll turn to our officials first, if they want to make a comment on Mr. Battiste's question about the admissibility of this one.