Indigenous and Northern Affairs Committee on June 12th, 2024

[The Chair, Liberal, Patrick Weiler]

I'd like to call this meeting to order.

Welcome to meeting number 114 of the House of Commons Standing Committee on Indigenous and Northern Affairs.

I want to begin by recognizing that we meet on the ancestral and unceded territory of the Algonquin Anishinabe peoples. As always, I express gratitude that we're able to do the important work of this committee on lands they've stewarded since time immemorial.

Pursuant to the order of reference of Wednesday, June 5, 2024, the committee is commencing consideration of Bill C-61, an act respecting water, source water, drinking water, waste water and related infrastructure on first nation lands.

Before we begin, I would like to ask that all members and other in-person participants consult the cards on the table for guidelines to prevent audio feedback incidents.

Please take note of the following preventative measures that are in place to protect the health and safety of all participants, especially the interpreters.

Use only the approved black earpiece. The former grey earpieces must no longer be used. Keep your earpiece away from all microphones at all times. When you're not using your earpiece, please place it face down on the sticker placed on the table for this purpose.

I want to thank you all for your co-operation.

Today's meeting is taking place in a hybrid format.

In accordance with the committee's routine motion concerning connection tests for witnesses, I'm informing the committee that all witnesses have completed the required connection tests in advance, I believe. There may be a couple we will have to work through, as well.

Before we turn to our witnesses, I want to address something that Dr. Powlowski brought up at the last meeting about some of the challenges we're having with the sound for interpreters. It was brought up at the Liaison Committee earlier today. I understand that it is something that the House of Commons administration is going to be looking at in detail over the course of the summer. Hopefully, we'll have some ways of remedying some of the challenges that we've experienced in the last few weeks—at least once we return in the fall.

I'm going to leave a little bit of time at the end of the meeting for us to do some important business, to pass the budget for this committee so that we can move ahead with what we need to properly do this study.

With that, I would like to turn it over to our witnesses who are here today.

From the Department of Indigenous Services, we have Joanne Wilkinson, senior assistant deputy minister, regional operations sector; Paula Hadden-Jokiel, assistant deputy minister, regional operations sector; Nelson Barbosa, director general, community infrastructure; and Rebecca Blake, acting director, legislation, engagement and regulations.

From the Department of Justice, we have Douglas Fairbairn, senior counsel, legal services, Department of Crown-Indigenous Relations and Northern Affairs and Department of Indigenous Services; as well as Lee-Yong Tan, legal counsel, legal services, Department of Crown-Indigenous Relations and Northern Affairs and Department of Indigenous Services.

There will be up to five minutes given for opening remarks, after which we will proceed to the rounds of questions.

With that, I want to welcome you all.

First, we'll have Ms. Wilkinson to deliver a five-minute introduction.

The floor is yours.

[Joanne Wilkinson, Senior Assistant Deputy Minister, Regional Operations Sector, Department of Indigenous Services]

Thank you very much, Mr. Chair.

I'd also like to acknowledge that we are having this meeting on the unceded and unsurrendered traditional territory of the Algonquin Anishinabe people.

Thank you on behalf of my colleagues, as well.

I am here with you today to talk about Bill C‑61, An Act respecting water, source water, drinking water, wastewater and related infrastructure on First Nation lands on first nation lands.

Thank you for giving my colleagues and me the opportunity to provide you with some information on this proposed legislation.

Everyone in Canada should have access to safe, clean and reliable drinking water.

First nations communities do not have legally enforceable safe drinking water protections similar to what is in place currently in provinces and territories.

In 2013 the Safe Drinking Water for First Nations Act was created to enable the development of federal regulations to support first nations' access to clean, reliable drinking water and effective treatment of waste water.

However, first nations shared several concerns with this act, including the lack of adequate, predictable and sustainable funding; the lack of recognition of aboriginal rights; the potential infringement of aboriginal and treaty rights; the lack of protection of source water; and insufficient engagement on issues that directly affect first nations.

As part of the 2021 Safe Drinking Water for First Nations Class Action Settlement Agreement, Canada committed to making all reasonable efforts to develop and introduce new proposed legislation in consultation with first nations to replace the repealed 2013 act.

Following the repeal in June 2022, Canada enhanced its engagement by working directly with first nation rights holders, including modern treaty and self-governing first nations, and first nation organizations, including the Assembly of First Nations and the first nations advisory committee that was created subsequent to the litigation settlement, to advance development of new proposed legislation.

Aligned with the United Nations Declaration on the Rights of Indigenous Peoples, Bill C‑61 was developed through engagement that put First Nation voices at the forefront.

Since summer 2022, hundreds of engagement sessions have taken place virtually or in-person, with groups of first nations or individual first nations, based on partner preferences.

Two consultation drafts of a legislative proposal were also shared with all first nations communities and posted online to support broad public review.

Through ongoing engagement with first nation rights holders and first nation organizations, key priorities for new proposed legislation were identified including recognition of rights; sustainable funding for drinking water and waste water services; source water protection; and the need for ongoing engagement on water issues that affect first nations.

Since the summer of 2022 Canada has also engaged with provinces and territories on the multi-jurisdictional issue of source water protection, a key priority identified by first nations.

Provinces and territories expressed mutual interest in safe and clean water, while emphasizing the need for continued respect for provincial and territorial jurisdictions.

In addition, an expanded Assembly of First Nations-Canada dialogue table was created in the late fall of 2022 with the purpose of accelerating collaborative work to develop the proposed legislation.

The leadership and guidance provided by the co-leads—former national chief of the Assembly of First Nations, Phil Fontaine, and the newly elected grand council chief of the Anishinabek Nation, Linda Debassige—have been instrumental in advancing the legislation before you today.

This partnership continues in tandem with the parliamentary process. Bill C-61, the proposed first nations clean water act, aims to address key priorities raised by first nations by ensuring that first nations have reliable access to safe drinking water and effective wastewater services; affirming the inherent right of first nations to self-government, including jurisdiction over water, source water, drinking water, waste water, and related infrastructure on, in, and under first nation lands; ensuring consistency with section 35 of the Constitution Act, 1982, and the United Nations Declaration on the Rights of Indigenous Peoples, including through consultation on federal, regulatory and fiscal allocation decisions; establishing principles for decision-making, minimum national standards and a federal regulatory regime for water services on first nations' lands; and facilitating collaboration between first nations and federal, provincial, territorial and municipal governments on transboundary source water protection, including through a first nations-led water commission.

The proposed first nations clean water act represents a historic opportunity for rights recognition to address harms of the past and to help ensure that they never happen again.

With that, we are happy to answer any questions that the committee may have.

Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Ms. Wilkinson.

Next up, we have Mr. Fairbairn from the Department of Justice. You have five minutes for opening remarks.

[Douglas Fairbairn, Senior Counsel, Legal Services, Department of Crown-Indigenous Relations and Northern Affairs and Department of Indigenous Services, Department of Justice]

Thank you, Mr. Chair.

On behalf of the Department of Justice, I'd like to express my appreciation for being able to work on this groundbreaking bill with Indigenous Services Canada. We've worked through the drafting up to the current stage, and we are here to support Indigenous Services Canada and to help answer your questions as well.

Thank you, Mr. Chair.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Fairbairn.

With that we can go into our first round of questioning, a six-minute round.

First, we do have a couple of new members on the committee today. I want to welcome Mr. Kurek, Ms. Falk, as well as Mr. Scarpaleggia, who I know has put forward a water study of legend at the environment and sustainable development committee. I want to welcome all three of you here today.

Without further ado, I will pass the floor over to Mr. Melillo for six minutes.

[Eric Melillo, Conservative, Kenora, ON]

Thank you very much, Mr. Chair.

Thank you to the officials for being here to talk about this important topic of Bill C-61.

I just want to start off the top—and whoever wants to answer, please jump in—that there has been a lot of discussion about this legislation as being co-developed. The government has used that phrase. We've also seen in media and in comments beyond that that many first nations did not feel adequately consulted in the lead-up to this legislation.

I'm just wondering if you could speak to the consultation process that was undertaken to get to this point.

[Joanne Wilkinson]

Certainly. Maybe I can start, and others can fill in the gaps.

There has been consultation or engagement ongoing since 2018 on proposed changes to the act that was then in place. The intensified discussions, though, happened as a result of the water settlement—the litigation settlement. This included the work I mentioned regarding the dialogue table with the Assembly of First Nations.

Also, there were two consultation drafts released. They were sent directly to first nations chiefs and organizations. We also extended the feedback period for the first consultation draft based on feedback we received from folks saying there had not been enough time. The drafts were released publicly, as well, so there could be increased access for those who wanted to comment and provide feedback.

[Eric Melillo, Conservative, Kenora, ON]

I appreciate that.

When you mention that, is it as simple as reaching out by email or phoning leadership in order to solicit that feedback, or is it different from that?

[Joanne Wilkinson]

I would say there is a mix.

There were certainly direct communications by email and phone calls made at various levels, through the minister and officials. Also, through our regional offices, we have existing relationships with regional organizations and chiefs directly on the ground. We presented at many different fora and gatherings of different sort—those types of things. We also worked with people who were directly impacted, like the first nations advisory committee.

[Eric Melillo, Conservative, Kenora, ON]

Thank you.

Could you speak about how concerns over, or opposition to, certain aspects of the proposed legislation at that point were dealt with in your department?

[Joanne Wilkinson]

Yes. When you look at the development of the bill through its various stages—the two consultation drafts and, ultimately, the bill that was introduced—there are a number of areas that were strengthened based on feedback that was received.

We can go into a couple of examples. Maybe I'll ask Mr. Barbosa to share a couple of specific examples.

Thank you.

[Nelson Barbosa, Director General, Community Infrastructure, Department of Indigenous Services]

Thanks for the question. It's a pleasure being back.

The progressive nature of the consultation draft was substantive. To the question, where we saw the most substantive feedback from rights holders, I would certainly say it's not universal, but it is progressive. Where we saw a substantive uptake on changes included funding, which has been a significant point of conversation among rights holders since 2018. I would note that the draft bill discussed today has significant provisions related to providing the absolute best nature of funding certainty. I would also say that the proposed work of the first nations water commission was progressively raised. The language in Bill C-61 is progressive, as well.

As to our fairly significant language around substantive equality and providing services comparable to those in local municipalities, these are things that were demonstrated loud and clear for many rights holders and are entrenched in the draft bill being considered in front of this committee.

[Eric Melillo, Conservative, Kenora, ON]

Thank you both for that. I appreciate that.

I want to speak about the water protection zones that are identified in Bill C-61 but not defined.

I think that's a clear distinction, and an important distinction. It's been left largely to future regulation on the part of the minister. I've heard some concern about how vague that could be.

I'm curious about whether there has been any pre-emptive consultation specifically on what that might look like—a definition of “protection zone”.

[Nelson Barbosa]

Thanks for the question.

With respect to the protection zone language, I would say that, in summation, maybe going back to the previous question, there were three large areas of focus by first nations. One was around rights. This is a rights-leading bill. The second is around funding. The third is the interplay of laws and jurisdiction that makes up the fabric of this country.

In relation to the protection zone, there are essentially three things happening in this legislation. The first, to your question, is the identification of what a protection zone is. Sources of water in this country vary greatly. In some cases, like in the Athabasca, they are very large. In other cases, they are much more geographically limited. The identification of a protection zone is something that's highly localized. Identifying what a protection zone is and the alignment of laws is a core part of this proposed legislation.

The second feature around the protection zones is largely around the participation of first nations and respective provinces and territories coming together to join agreements on protecting water. Water flows. Jurisdiction is finite. It has defined borders.

As Ms. Wilkinson mentioned earlier, there is a regulatory gap on reserve that should be bridged through the creation of essentially local laws. How those laws align to broader laws in a particular province and territory is critical in providing safe water for all Canadians.

So the protection zone really begins with, one, the conceptualization of what is the geospatial footprint of a protection zone, and then it moves toward—

[The Chair, Liberal, Patrick Weiler]

Mr. Barbosa, I'm afraid I'll have to ask you to wrap it up.

[Nelson Barbosa]

Thank you. My apologies.

[The Chair, Liberal, Patrick Weiler]

With that, we'll go to our second questioner.

Mr. Battiste, you have six minutes.

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

Thank you, Chair.

Thank you for your opening comments. One thing you mentioned in your opening comments is that there currently exists no protections for first nations water and regulations. This is something that first nations have had to deal with across Canada for generations. This is an important piece of legislation.

I have two questions on this. We have seen many times where industry has been a bad actor and has not always looked out for the best interest of their neighbours in indigenous communities, which has led to contamination and poisoning of the water. I know that we're going to hear testimony on this, but one of the sites in Nova Scotia, Pictou Landing, for more than four decades had their water poisoned by a lumber mill close by.

I'm wondering two things. One, how is this legislation going to protect first nations drinking water from pollution, from contamination? Two, what is the provincial role in this to ensure they're working collaboratively with the federal government? It was the provincial government who allowed the polluting of this community in Nova Scotia for many years. I'm wondering if you could speak a little bit about what this legislation does to protect that and how we can ensure that provincial governments follow suit.

[Rebecca Blake, Acting Director, Legislation, Engagement and Regulations Directorate, Department of Indigenous Services]

Thank you very much for the question.

In terms of the legislation and the source water protection that my colleague mentioned earlier, water flows, and it's a multi-jurisdictional issue. It's really about creating pathways, as water flows on to reserve land and off of reserve land, to ensure that the provinces, first nations and federal government are working together. It's not just Indigenous Services Canada. It's also other federal ministers coming together and using all those regulatory powers that exist in Canada to work with provinces, to coordinate those laws and support first nations on that safe drinking water.

I'd also add that there are regulatory-making abilities in the proposed bill itself on first nation lands. With those proposed regulations, they would go through the normal gazette process where everybody would be included, including provinces and territories. In addition to that, there are commitments for that ongoing consultation and co-operation with first nations, as the rights holders, to protect their drinking water.

Thank you.

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

If no one else wants to add to that, I'm wondering if Justice could answer. As a federal government, we have a fiduciary responsibility to indigenous people. They believe, and I agree, they have an inherent right to clean drinking water.

How can we ensure through this legislation that for industry or provinces who are acting in bad faith and not upholding their fiduciary responsibilities to first nations communities, we have remedies, legal remedies, to protect this water?

[Douglas Fairbairn]

Certainly, sir. One of the features of this bill is, as has been noted, is the concept of a protection zone. Although this bill focuses on first nation lands, there is the ability of first nations and provincial governments and the federal government to set out a protection zone. It is supposed to be adjacent to first nation lands, but it can extend out from those first nation lands and cover source water and other bodies of water that flow into first nation lands. Through this mechanism of a protection zone—which would be designed and developed in concert with provincial governments, first nations and the federal government—we foresee the ability to help protect water beyond first nation borders.

[Joanne Wilkinson]

Maybe the other thing I would add—and I'm sure the committee has heard this in other realms, and we'll hear it in these deliberations as well—is that first nations expect a full seat at the table for these discussions. It is the intent of the bill that this take place. We certainly heard that loud and clear through the engagement process, and that's what we believe is here in the bill.

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

I don't think I'll have the time to get this answered, but I'd love it if you guys put this in writing. I'm looking at the Assembly of First Nations' website, and they've had seven annual water symposia. I'm sure some of these were broken up during the COVID days, but we've had seven national water symposia where first nations were invited to give their feedback. How much are we building this legislation from the direct feedback that we've heard from first nations during those seven annual water symposiums?

[Joanne Wilkinson]

I don't have the list of the seven symposia with me, but we've certainly been working very closely with AFN and been present at all of those types of fora to have these discussions. As I said, we've been in a funding relationship with AFN since 2018 on engagement, and so we have been very engaged and very active in working with those who attend those symposia, because they include experts as well, right? There are a number of experts and others on the ground, whom I'm sure you will hear from later, but really tapping into that expertise has been critical to make sure that the implementation of the act can be well thought out in advance as well.

Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Battiste.

Mr. Lemire now has the floor for six minutes.