Indigenous and Northern Affairs Committee on June 12th, 2024

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

Thank you, Mr. Chair.

I was thinking of addressing this topic a little later, but I feel I must do so now: water falls under natural resources, which is a provincial jurisdiction.

On the subject of other possible agreements, subclause 25(1) of Bill C‑61 raises a certain number of questions in terms of jurisdiction and encroachment into provincial areas of jurisdiction. The government should be questioned about the wording of clause 25, which allows Ottawa to enter into agreements directly with cities.

In my opinion, it would be inappropriate for such a thing to happen in Quebec. That said, has Quebec agreed to your bill? Does Bill C‑61 take into account the Quebec government's National Water Policy? Has the Quebec government given you the go-ahead on this?

[Nelson Barbosa]

I think it's important to underscore when we're talking about the creation of a regulatory and legislative environment that we're talking about something called section 91(24) lands, which are Crown lands or reserved lands. In no way does this legislation impinge on provincial jurisdiction. The protection zones are based on mutually agreeing collaborative process between first nations, the federal government and provinces and territories.

On feedback from provinces, including from Quebec, it was clear throughout the consultation process—which was oriented to first nations of course, but also provinces and territories—that existing jurisdictions that make up the laws of this country, including that of the Constitution, must be respected. This legislation doesn't expunge or impinge on that jurisdiction. However, if it's in the zone of bridging, as was mentioned, where there is a significant regulatory gap...and also opening up pathways for joint agreements that don't exist today to talk about how water is a source of many things, including clean drinking water, how is that being protected across multiple jurisdictions, including in the province of Quebec?

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

I also want to talk to you about the First Nations Water Commission, which is referred to in clause 39 of the bill.

When we work with certain commissions, we run into problems related to the very mandate granted to these commissions. Obviously, the devil is in the details. Will the First Nations Water Commission be structured like the Canadian Nuclear Safety Commission, for example?

We know that it's possible to set up a commission that doesn't have the power to propose solutions or other possibilities. This was in fact the case with the Chalk River site for nuclear waste. It's probably one of the worst places to store nuclear waste, especially since it's at the top of a mountain, upstream from the Ottawa River, or Kitchissipi, as the Anishinabe call it. There are already contaminants in the water. Now, this site will further compromise the quality of drinking water in the surrounding area.

Are we making sure we apply the precautionary principle to waterways that are upstream of cities, as is the case with the Chalk River site? Indeed, the cities of Ottawa and Gatineau, which are located barely 200 kilometres from the Chalk River site, take their water from the Ottawa River.

Indigenous knowledge of whether water is alive has also been ignored. Even consultation with indigenous people was botched. These Anishinabe communities even sued the Canadian Nuclear Safety Commission over its favourable recommendations.

It is in this context that I ask whether the First Nations Water Commission will follow a model similar to that of the Canadian Nuclear Safety Commission.

[Nelson Barbosa]

Thanks for the question.

With respect, I am not super familiar with the commission being the comparator.

What the legislation proposes with respect to the first nations water commission is, I think, threefold.

One is the aforementioned drinking water settlement agreement, committed to create an institution to support first nations in the administration of many affairs, including those itemized in this bill. I won't read through them, but they include regulatory and capacity supports.

The commission, in and of itself, needs to be co-developed and supported through consultation with first nations, so the legislation creates the space for that organization, and it alludes to what it can do. However, in essence what needs to be created is essentially that consultation process to create the commission itself.

Subsection 39(1) speaks about that process, and then the remaining paragraphs in subsection 39(1) speak to the potential parameters by which the commission could perform its functions, ranging from operations to maintenance, capacity supports, regulatory development et cetera.

In potentially passing this legislation, what would be created is essentially the venue for that dialogue.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

I'd like to warn you about the appearance of conflicts of interest that we often see on these commissions. This has been the case with the nuclear industry, in particular. As we've seen, the Minister of Crown‑Indigenous Relations was unable to apply the precautionary principle and the principle of prevention to an essential resource like water when it came to projects that posed risks to flora and fauna. In this case, it was the Ottawa River.

What's most important to note is that the mandate of these commissions means that ministers absolve themselves of their responsibilities, saying that they've entrusted this to an independent third party, such as the Canadian Nuclear Safety Commission. By having an independent commission, ministers are absolved of their responsibilities and accountability. Then they tell indigenous people to go to court. That's what happened with nuclear waste. I'm afraid a bit of the same thing will happen with a water bill.

Unfortunately, my time is up. Mr. Chair, could you show some leniency and give the witnesses time to provide me with an answer?

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Lemire. Perhaps you'll have the opportunity to ask the same question in the next round.

With that, we'll go to our fourth questioner here, Ms. Idlout, for six minutes.

[Lori Idlout, NDP, Nunavut, NU]

[Member spoke in Inuktitut, interpreted as follows:]

Thank you, Chair.

Thank you for coming to inform us on this Bill C-61, which is geared towards first nations. It's not geared towards the Inuit community.

[Technical difficulty—Editor]

[The Chair, Liberal, Patrick Weiler]

I'm sorry. We're going to have to pause for a second here. We don't have any interpretation.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

I'll venture to speak for the interpreter.

I couldn't comment on the English interpretation of Ms. Idlout's words, but I heard the French interpretation, at first. After a sentence, however, the interpretation stopped, and then the interpreter had to carry out checks and tests. So I couldn't understand my colleague's intervention.

[The Chair, Liberal, Patrick Weiler]

Ms. Idlout, you can restart your time for the full six minutes.

Thank you.

[Lori Idlout, NDP, Nunavut, NU]

[Member spoke in Inuktitut, interpreted as follows:]

Thank you for coming.

If I can, I'll start by saying this bill is geared to first nations. It's not geared to the Métis and it's not geared to the Inuit community. That is my understanding.

It will impact first nations governments. How many first nations government bodies will be impacted by Bill C-61?

[Joanne Wilkinson]

As my colleague described, it is geared to 91(24) lands. Generally speaking, it's for reserve lands. It's not meant to take the place of the broader federal Canada Water Act that was developed by Environment and Climate Change Canada.

You're right that it is specific to 91(24) lands.

[Lori Idlout, NDP, Nunavut, NU]

[Member spoke in Inuktitut, interpreted as follows:]

How many lands will be impacted? How many bands will be impacted? That's what I want to know: how many? I'd like the numbers, please.

[Nelson Barbosa]

There are 634 first nations from coast to coast to coast. A proportion of those are self-governing first nations, which have paramount laws around jurisdiction. In some cases, they include water. The rough number, just for frame of reference, is around 570 to 580 first nations communities. It's 634 less the self-governing first nations.

[Lori Idlout, NDP, Nunavut, NU]

[Member spoke in Inuktitut, interpreted as follows:]

Thank you.

From my understanding, there are over 600 communities that will be impacted.

My question is how many supported this bill, Bill C-61. Out of these 600 first nations bands, how many have you heard from, looking at first nations entities? How many have you consulted with?

[Joanne Wilkinson]

I will start, and maybe my colleague can follow up.

We have engaged with all of them, so all nations were provided with both consultation drafts. We had lots of outreach with those that were interested in having discussions, as I mentioned, either alone or in groups, through organizations or through direct interaction with the nation itself.

Perhaps my colleague can share some details as well.

[Nelson Barbosa]

Certainly. Thank you for the question.

To build on my colleague's points, there were two consultation drafts that were shared publicly online—which is a first for this department—for all consideration and feedback. During the consultations, there were daily drop-ins for first nations.

We held direct consultation sessions based on requests from first nations coast to coast to coast. They were both virtual and in person, and that happened in a concerted way throughout the consultation process.

There was significant outreach, both direct and indirect and through written format.

[Lori Idlout, NDP, Nunavut, NU]

[Member spoke in Inuktitut, interpreted as follows:]

Thank you for that.

I want to hear numbers. I want to hear how many first nations you consulted with. You talked about engagement. For me, it's not too clear.

I want you to explain, because the duty to consult is very important, and first nations people will be impacted. We need to know how many first nations bands and how many first nations you consulted with. I want to know the numbers of these.

[Paula Hadden-Jokiel, Assistant Deputy Minister, Regional Operations Sector, Department of Indigenous Services]

Qujannamiik for the question.

As my colleagues have outlined, there were a number of ways we did outreach with communities, but we also had over 181 first nations and first nations organizations that we met with or had direct correspondence with related to this bill.

Since 2018, we've provided over $10 million to a variety of organizations to support engagement in the development of this bill, which included things like the symposiums that your colleague mentioned.

Thank you.

[Lori Idlout, NDP, Nunavut, NU]

[Member spoke in Inuktitut, interpreted as follows: ]

Thank you.

For my last question, while I have time left, we were told that the first nations have concerns. They had to sign an agreement and this agreement had a non-disclosure agreement.

Do you have to get first nations to sign on to this non-disclosure agreement? Is this true? What are the numbers?

[Joanne Wilkinson]

I think you may be referring to those who participated in the AFN dialogue table.

We did have non-disclosure agreements with those who were involved in the development of certain documents that required that, but we did not have the folks who were being consulted or engaged with on the ground sign those non-disclosure agreements.

Because it was public, there was no need for that to happen.

Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Ms. Idlout.

That concludes the the first round of questioning.

First up in the second round, we'll be going to Mr. Melillo for five minutes.

[Eric Melillo, Conservative, Kenora, ON]

Thank you again, Mr. Chair.

I'd like to come back to the question of the protection zone that I left off at, specifically in clause 21. I'll ask our officials from justice for a comment here.

It says, “The Minister must make regulations defining 'protection zone'”, and it goes on further to specify that “the Minister must consult and cooperate with First Nation governing bodies”.

From the justice perspective, can you define what “consult and cooperate” would look like in your view?

[Douglas Fairbairn]

Yes.

One of the the key aspects of this bill is to ensure that there is input and continuous feedback from first nations with respect to a wide variety of things, but it includes the protection zone. There is case law that sets out consultation. Co-operation is a newer concept from the the UNDA, and we're still working through that as a federal government.

From the perspective of justice and ISC, I think it would mean there would be a need to get substantial input from first nations to ensure that any definition works for their particular needs. These protection zones can exist for any first nation lands, so there will be a need to work with any first nation that wants a protection zone. They may need to be tailored to their particular circumstances.

[Eric Melillo, Conservative, Kenora, ON]

I appreciate that. The reason I ask is because it's one thing to say “consult and cooperate”, but then, of course, the minister, at the end of the day, does have the authority to make those regulations. We've heard already, in terms of just developing this legislation, that although the government is saying that it had an extensive consultation process—and I don't dispute that—there are still many first nations that are saying that they were not adequately consulted. It's not a great start.

It's saying in Bill C-61 that the minister will consult and co-operate, but at the end of the day, the minister has the authority to make the protection zone on their own.

Is that correct?