Indigenous and Northern Affairs Committee on June 12th, 2024

[Rebecca Blake]

Similar to the broader bill, the main guiding principle is about consultation and co-operation with the rights holders. That determination would be done directly with first nations communities, as we do recognize there are different needs from community to community, whether there be drought, for instance, or other factors at play in different regions across present-day Canada

[Eric Melillo, Conservative, Kenora, ON]

I think it's important to note, as well, that there are many first nations sharing the same source of water with non-indigenous communities.

Would those standards have any impact in cases of drought, or in situations that put extra stress on those systems, especially when they're being shared with other jurisdictions?

[Rebecca Blake]

I appreciate the question.

This gets into the agreement-making abilities outlined in the proposed act. The proposed act allows for agreements with multiple orders of government, in order to be as inclusive as possible of holistic approaches to different watersheds in different areas of present-day Canada. The idea is very much that different communities would come together to work on what works best in their area.

[Eric Melillo, Conservative, Kenora, ON]

Thank you.

I think I have time for one more question.

Broadly, the bill uses the term “best efforts”, I believe, in eight different sections or subsections. Again, many first nations are raising concerns about that language, because it's very broad. I think we would hope the minister is always making best efforts in everything being done.

Why is that language so vague? Why was that language settled on?

[Nelson Barbosa]

There are multiple references, as you mentioned. I'd probably point to a couple of them.

Certainly, one of the core feedbacks we heard from partners is regarding funding predictability. My colleague from the Department of Justice talked about the role of ministers and, of course, the parliamentarians in this room in the appropriation of funds. How that works in a modern-day confederacy is important.

However, those best efforts, particularly in funding, are buffered by other things that talk about what makes water systems run. What are those true costs? How are those being assessed regularly? How are those being reported? At the back end of the legislation, you'll see reporting annually to parliamentarians, as well.

Best efforts isn't only about the language, then. It's about the intent of the subsections on funding and others, and ensuring it goes through the democratic process and is done in a transparent way.

[Eric Melillo, Conservative, Kenora, ON]

Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Melillo.

With that, we'll go to Mr. Carr for five minutes.

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

Thank you very much, Mr. Chair.

I have a question regarding the opening remarks by Ms. Wilkinson.

It's on what appears to be language from section 35, based on what I read in the legislation. It refers to the inclusion of affirming inherent rights “under First Nation lands”.

Can you elaborate a bit on what that refers to specifically when we talk about “under First Nation lands”?

[Douglas Fairbairn]

The idea is that water can be on first nations lands in the sense of a lake or a river. It can be under the lands as a reservoir. The idea is that first nations would have jurisdiction over not just the surface water—a lake or river—but also the water within the soil.

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

Okay, I figured that was the case, but I wanted the clarification. Thank you.

Can you provide a practical example—if you have one specific to my home province of Manitoba, that's even better—of an issue that exists in a first nations community today that has not been resolved because of the absence of legislation, and that would otherwise be resolved if legislation such as this were in place today? Are you able to provide any type of example that comes to mind of something that is a problem in the absence of this legislation but, were it to be passed, wouldn't be a problem, and why?

[Rebecca Blake]

I appreciate the question.

Many of us benefit today when we get up in the morning, wash our faces, use the washroom and brush our teeth. All of these factor in water. As we know, with a lack of enforceable standards on first nations lands right now, it is difficult to ensure we can partner with first nations to make sure they have the same equity as everybody else in Canada.

By passing a proposed bill like this, there would be enforceable standards in place to ensure that.

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

Thank you.

I have what may be a bit more of a technical question.

The legislation refers to “First Nations”. However, in the section that provides definitions of terms, “First Nations” is not in there. I presume we simply use the section 35 definition of “First Nations”.

I'm curious about when we refer to first nations in the bill. Does that mean first nations as members of a collective, first nations as governing bodies or each individual first nations person?

The reason I ask is that, if there is disagreement among first nations individuals in a first nations community governed by a first nations body, who is it the legislation is referring to in that instance? Is it the governing body that has the right, or is it the individual?

I hope that made sense.

[Douglas Fairbairn]

The idea is that the focus is on the first nations governing body. “First nations” may sometimes be used in the sense of the broader collective, the broader band. Rather than using the term “band”, it means first nations. The distinction would be that the governing body is essentially the council and the government, and the first nation is the collective of individuals making up the band.

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

For the purposes of the legislation, essentially “first nations” would refer to the first nations governing body.

[Douglas Fairbairn]

Yes. Specifically, the first nations governing body would be similar to the council. Then the first nation is all of the people in making up the....

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

Right.

I have one further question. We probably won't have time to answer it in depth.

However, let's imagine hypothetically that we have a first nations governing body that is supportive of a natural resources project. Let's call it a pipeline. If that pipeline and the approval of it was inconsistent with standards that were set out in this legislation, how might that be rectified?

[Nelson Barbosa]

May I just go back to the previous question?

There are a couple of defining terms on first nations governing bodies and first nations lands in the earlier sections that might provide some further light to your previous point.

On the question of where there might be conflicting laws, including those with regard to resource development, those are itemized in the clause called “Limitation”, which talks about if there are conflicting laws. Should a first nation bring a law into force that may conflict with regulatory or natural resource laws that are itemized in this bill.... The limitations talk about the paramountcy of laws and which laws would prevail. This is standard practice in many pieces of legislation.

I think if the question is about where there is a conflict of laws, that's itemized in this bill as well. Is that your question?

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

I'm out of time, so I'll pull you aside after and clarify. Thank you.

I knew it would take more than 90 seconds. Thanks.

[The Chair, Liberal, Patrick Weiler]

Thank you very much Mr. Carr.

That completes our second round of questions here.

I just want to put something out to the committee to see if there's consent for it: Could we have the next round be our last round and have five minutes for each party to ask questions, before we need to move into committee business to do a few things that we talked about earlier?

[Some hon. members]

Agreed.

[The Chair, Liberal, Patrick Weiler]

I see agreement, so we will move ahead with that.

First up in the third round will be Mr. Melillo for five minutes.

[Eric Melillo, Conservative, Kenora, ON]

Thank you, Mr. Chair.

You're going to have to take tomorrow off.

I appreciate the opportunity to ask some more questions.

[Jamie Schmale]

Don't you only work three days anyway?

[Voices]

Oh, oh!

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

[Inaudible—Editor]