Public Accounts Committee on Dec. 14th, 2023

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Well, I thank you for that.

I note, Mr. Chair, that it, indeed, was former prime minister Harper who ordered that those public servants be laid off, given early retirement—

[The Chair, Conservative, John Williamson]

Thank you.

The time has elapsed. We'll end the sparring now.

I appreciate everyone coming in today. Thank you. This was a large group of witnesses, but everyone handled themselves very well.

I'm going to excuse the witnesses now. Thank you.

I'm going to suspend this meeting, and we'll come back in camera very quickly. If you don't have business in the in camera meeting, please excuse yourself and leave the room.

I'm going to suspend.

[Proceedings continue in camera]

[Public proceedings resume]

[The Chair, Conservative, John Williamson]

We're now in the public domain.

There was a motion brought forward by Mrs. Shanahan. You should all have copies now in both official languages.

I'm afraid I have to rule this out of order on the appropriate and well-understood fact that this motion, for the most part, is directed at—

Yes, go ahead.

[Blake Desjarlais, NDP, Edmonton Griesbach, AB]

I'm sorry, Mr. Chair.

I understand we just moved into public. For the importance of record-keeping, can you please read the motion in its totality, then issue your ruling?

[The Chair, Conservative, John Williamson]

I'll have the clerk read the motion.

[The Clerk of the Committee, Mr. Cédric Taquet]

The motion reads as follows.

Whereas, the Alberta Energy Regulator failed to contain a tailing pond seepage while waiting 7 months for a geochemistry study to be completed, whereas, the Alberta Energy Regulator previously claimed that there was no contaminants found in the waterways when in fact Imperial staff told ACFN inspectors that dissolved iron was found in waterbody 3, and on April 3, 2023 that a test showed F2 hydrocarbons and naphthenic acids in waterbody. That the committee express its disappointment with the Alberta Energy Regulator and acknowledge that the Alberta Energy Regulator has been deficient in protecting the environment and health of communities adjacent to tailing ponds that it regulates; that in relation to the Follow-up Study on Report 3: Access to Safe Drinking Water in First Nations Communities—Indigenous Services Canada, of the 2021 Reports 1 to 5 of the Auditor General of Canada, and following the evidence provided by witnesses at the Standing Committee on Environment and Sustainable Development regarding the toxic leak of tailing ponds and ongoing deficiencies in protecting the health and safety of Indigenous communities at risk, the committee: 1. Call on the Alberta Energy Regulator and the Government of Alberta to work with companies that operate tailing ponds and the federal government to conduct a study to assess the impacts of tailing ponds on human health, 2. Call on the Alberta Energy Regulator to require operators of tailing ponds to increase monitoring of adjacent drinking water sources, 3. Call on the Alberta Energy Regulator to conduct a geotechnical audit of all tailings limits, 4. Call on the Alberta Energy Regulator to require operators of tailing ponds to halt the release of tailings into waterways, 5. Request that the Office of the Auditor General, through the Commissioner of the Environment and Sustainable Development, conduct an audit of environmental protections around Canada's waterbodies, especially those on Indigenous lands.

[The Chair, Conservative, John Williamson]

Thank you.

There are three issues with this motion. One, Alberta has a Parliament. Two, on investigating and instructing a provincial government, Alberta has its own audit office. Three, the federal government and Parliament have no ability to instruct the Alberta government or the Alberta Energy Regulator to do anything.

To me, this is a very moot point. You are certainly welcome to work with the clerk and come back to this committee with language that is more in the federal sphere, and in this committee's sphere. That is my decision.

Yes, go ahead, Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Mr. Chair, I'd like to challenge your ruling.

[The Chair, Conservative, John Williamson]

That is a non-debatable motion.

(Ruling of the chair overturned: nays 7; yeas 3)

The motion, then, is before the committee.

Yes, go ahead, Mrs. Shanahan.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Thank you very much, Chair.

Thank you very much to everyone for understanding how important this motion is for our committee. I must say I have welcomed in previous sessions of this committee opening up and reviewing environmental reports from the commissioner of the environment and sustainable development to, of course, report to the federal Auditor General of Canada on a wide range of issues. Indeed, we have some of those studies ongoing as well. We have also taken the initiative in this committee to make recommendations that I might have said in a previous session of the public accounts committee were not necessarily appropriate.

However, I have come to really appreciate the work—and I'm talking now to all members of the opposition—that has been done in bringing forward some of the critical elements, because the federal government does not work alone. We are in a federation of provinces and territories, and when we are talking about clean water on indigenous lands, we are talking about a federal responsibility, and it is one that we take with great seriousness.

This is why I was very happy to bring forward this motion, and I am very pleased that we are here, debating it now, so we can continue.

[The Chair, Conservative, John Williamson]

Thank you.

Please go ahead, Mr. McCauley.

[Kelly McCauley, Conservative, Edmonton West, AB]

Thanks, Chair.

There are a couple of things about this that quite surprised me.

First of all, number five requests that the commissioner of the environment conduct an audit. That's wonderful. I would say please, 100%, they should go ahead with that. I have a lot of time for the commissioner of the environment and for the AG. The work that they do is very straightforward.

I have to say I'm not surprised. I have sat in this committee and heard again and again from the Liberal side that we shouldn't be doing the work that other committees are doing. This is almost identical, word for word, to a motion that's been dropped in the environment committee.

I'm shocked, but not surprised. We have been lectured by the Liberals about how public accounts is a committee built on consensus and not a political one. This is clearly one geared toward attacking the province of Alberta. I have nothing to say to defend the Alberta Energy Regulator. If the report should be done, then we should open and expand it entirely for the environment commissioner to go at it 100%.

I don't think it's the role of this committee to be criticizing, attacking or calling out provincial regulators. I'm sure there are lots, whether it's the city of Montreal dumping raw sewage, or the city of Victoria. This committee doesn't attack those or study those things.

It is unfortunate, but not surprising, that the government is playing this game.

Again, on recommendation number five...full on. If they want to do it, I'd love to see more reports from the environment side of the Auditor General, and certainly addressing the issue of clean drinking water.

The Macdonald-Laurier Institute put out an amazing report on the issue, and I think Mr. Desjarlais read it. There are a lot of pragmatic things, and maybe we'll get some pragmatic answers out of it. If the energy regulator has dropped the ball, 100%, we should address that.

Maybe in the end, having number five done.... How it has come about is very disappointing. I can imagine committees now attacking Alberta, perhaps now attacking Quebec on Bill 21 or attacking B.C. on this. For us to devolve into such pettiness is, I think, unfortunate.

The numbers are obviously here to support this motion. I think it's, again, number five and having that study. Maybe we should talk about having the recommendation expand this study for other provinces or other issues around it, not just the one, because I'm sure there are more safe drinking water issues than just the Alberta issue. Maybe it should be—

[Blake Desjarlais, NDP, Edmonton Griesbach, AB]

You have the time.

[Kelly McCauley, Conservative, Edmonton West, AB]

Oh, no, I'm not looking at that because I'm sure we're going to continue.

I'm just saying, maybe it should be extended.

I'll wrap up quickly. This is not about time, I'm not trying to kill the clock, but maybe it should be extended and not just look at that specific one.

I've said my piece. I'm disappointed in colleagues around the table, but I'm very happy to direct the environmental side of the AG's office to expand any audits they wish on this topic. I'll support that part at least.

[The Chair, Conservative, John Williamson]

Mr. Desjarlais.

[Blake Desjarlais, NDP, Edmonton Griesbach, AB]

Thank you, Mr. Chair.

I think this is an issue that requires careful consideration as to the principles of cooperative federalism in Canada. It's important, and it's been ruled in many Supreme Court cases in the past, when it relates to first nations issues in particular. I can go back to the 2016 court decision in Daniels v. Canada, even before that, for the purpose of my discussion,

The 1939 Supreme Court reference case around the inclusion of “Eskimo in habitants of the Province of Quebec” makes it clear that when provincial entities, particularly the regulators of natural resources, come into conflict with federal jurisdiction, particularly in relation to their constitutional obligation to protect indigenous peoples under section 35, it is the honour of the Crown that is united both provincially and federally to the relations of first nations people.

It is well defined in common law in Canada, that when it relates to first nations issues, the honour of the Crown, which is indivisible....

We serve one Crown, both the provinces and the federal government. It is not that first nations people live under the provinces' jurisdiction; they don't even live under the federal government's jurisdiction. They live separate and distinct by way of treaty with the Crown.

This means that in instances where the Crown has acted dishonourably, in particular relating to the Athabaska Chipewyan First Nation's assertion that the Alberta government has breached its legal fiduciary and consultative duties to these leaks, it also would seek the protection of the federal government, with which it signed a treaty, for the very same.

We have to be cognizant that in relation to first nations issues, the Crown is indivisible, meaning you can't rule something out of order or out of jurisdiction because it's a provincial entity in direct relation to first nations issues. It is a commitment to all of us, all people, that we ensure that the treaty obligations of these nations are upheld.

That includes and is not limited to the Province of Alberta and the Alberta Energy Regulator. I see no problem enacting my duty as a member of Parliament to protect the constitutional rights of first nations peoples in Alberta under section 35 of our Constitution, which binds both the provinces and the federal government to the protective orders and protective status of the lands on which first nations people live and, most particularly, the waters that they drink.

Therefore, it is not out of order, in my perspective, that the Alberta Energy Regulator be held to account by the federal government as a measure of protection for first nations people and as a protection of their constitutional rights under section 35.

The alternative, or the suggestion of the alternative, would mean that first nations should not be able to find or hold accountable the AER, especially if it is directly impacting their rights, which I fundamentally disagree with. I fundamentally assert that this has been dealt with in case law many times before. As a matter of fact, the AER very often has to respond to federal jurisdiction and federal legislation. We saw that with the recent CEPA legislation, for example. The AER had to change its own regulations because of it.

These things don't exist in a vacuum. It's important that Alberta be held accountable for its breaches of aboriginal rights, and it's up to us, as federal parliamentarians, to uphold our obligations under subsection 91(24) of the 1982 Constitution Act, which is to ensure that indigenous—or in the words of the constitution, “Indians, and Lands reserved for the Indians”—are hereby protected.

It's well within our scope as a federal legislature to ensure that the honour of the Crown is upheld. Even if they're provincial institutions, it is still our constitutional obligation under section 35 to protect these rights and to ensure that those persons who would breach those rights are held to full account.

Therefore, I disagree with your ruling, Mr. Chair, and I would suggest that you revisit this with a common understanding of the law in relation to first nations issues, and have the law clerk maybe review that judgment in relation to that.

[The Chair, Conservative, John Williamson]

This has been dealt with. I made my ruling. I believe it's out of order. The committee has overruled me so that stands now, but this Parliament does not get to tell the Alberta government what to do. In fact, two recent court cases demonstrate—

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

I have a point of order, Chair.

[The Chair, Conservative, John Williamson]

No, I'm responding to him as the chair.

Your point was moot. You've already established that this committee is going to look at it.

My point is that this Parliament does not get to instruct Alberta on what to do. You have provincial counterparts who do that in the Alberta legislature. To reinforce my point, there are two recent—

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Chair, you just said that you already did rule.

[The Chair, Conservative, John Williamson]

—court cases that demonstrate that. When the federal government intrudes into provincial jurisdictions, the courts rule it out of order. I'm not taking issue with what you're talking about in terms of the whole-of-country approach toward dealing with native issues. My point was that this motion is instructing the province to do something. We don't have the authority to do that. It would be like saying we're going to put a man on the moon as well.

[Blake Desjarlais, NDP, Edmonton Griesbach, AB]

A man on the moon...?

[The Chair, Conservative, John Williamson]

We're making an instruction that we have no ability to enforce.

Having said that, the committee has ruled to overrule my decision, as is its right, but there's no point debating that, Mr. Desjarlais. It is being discussed. There's nothing to take back to the clerk. There's nothing for me to take back. I am the servant of this committee, and this is where the motion stands. We're now debating it, and I have a list of witnesses.

If you're done, I'll go to the next one.

[Blake Desjarlais, NDP, Edmonton Griesbach, AB]

I'd like to respond.

[The Chair, Conservative, John Williamson]

No. I'm going to put—