Indigenous and Northern Affairs Committee on June 12th, 2024

[Eric Melillo, Conservative, Kenora, ON]

Oh, oh!

All right. Get some order here, Mr. Chair. Come on.

I just want to quickly pick up on the best efforts because we ran out of time there. I'm just curious. If those words, “best efforts”, are removed from the legislation, what sorts of impacts would that have?

It obviously depends on where they are. I know there's an instance where it mentions that the minister should make best efforts to consult. I think that would be a simple change, making it “the Minister must begin the consultation”. I think that that's something that should be possible.

From your perspective, if that were to be removed, what general impact would that have?

[Nelson Barbosa]

That's a good question.

I'm going to go back to the funding one because it's the inference I made before. If it said that the minister must do X, Y and Z, that would require a fiduciary requirement for the government and for Parliament to appropriate funds relative to the agreement being provided. Instead of “best efforts” to do those things, publicize them and substantiate investment behind those studies.... If you remove those words, then parliamentarians must appropriate funds legislatively to do the aforementioned items.

[Eric Melillo, Conservative, Kenora, ON]

I appreciate that.

I'll go back to protection zones. I'm curious about multi-jurisdictional areas.

I'll explain this a little more. I live in Kenora on Lake of the Woods. It's an international body of water. There are many first nations on the lake as well. I suspect that an area such as that could become complicated with Ontario, Manitoba and the state of Minnesota, as well as the first nations affected.

In terms of defining those protection zones, has there been consideration for situations like that where an international government could potentially be involved or have jurisdiction over some of that water in that territory?

[Nelson Barbosa]

In terms of what's embedded in the legislation itself, it does not consider international waters, including tributaries that may flow outside of Canada. It's within the confines of Canada's jurisdiction.

[Eric Melillo, Conservative, Kenora, ON]

I appreciate that.

To go back to the definition of the water protection zone, in my last round, we confirmed that the minister could, theoretically, make decisions on defining that zone without the consent of the first nation and/or a relevant province or territory. It does seem problematic to me that that is the case.

Are there discussions or any desire on the part of the department to solidify that into a more specific agreement to ensure that there is consent from each of those three parties before such a zone could be defined?

[Nelson Barbosa]

I'm reading the consultation section that you're referring to, which is subclause 22(2), where it says "The Minister must consult and cooperate with a First Nation", etc.

Go ahead, Rebecca.

[Rebecca Blake]

That provision is in a broader context of the bill. In that broader context is rights recognition that requires a coordinated approach with provinces and first nations. Therefore, there is a requirement of agreement between those provinces and first nations. That just suggests reading them together.

[Eric Melillo, Conservative, Kenora, ON]

I understand that broadly, but how is that requirement of consensus captured? How is that defined or solidified?

This is a perfect example. We're hearing that this bill has been co-developed and that there's broad support. However, my colleague from the NDP, and I and others have brought forward concerns that we've heard to the contrary of that.

How will that be actually defined and actioned in the way that it's intended to be? You're saying great things. I understand the sentiment, but the legislation seems to be contrary to that.

[Rebecca Blake]

I appreciate the question and clarification.

Agreements are one way to do it, where there would be signatories of the provinces as well as the first nations who are impacted. However, there are other ways too. It is a coordinated approach, and we do want to leave space for first nations as the rights holders with their own governance systems to ensure that those agreements are approached in a way that works for every party. An agreement is an example of that.

[Eric Melillo, Conservative, Kenora, ON]

Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Melillo.

Mr. Scarpaleggia, you have five minutes.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you, Mr. Chair.

I'm going to continue in the same vein as Mr. Melillo.

It's still not clear in my mind. Let's say the federal government and the first nation or first nations agree on the delineation of a protection zone. Will they be able to publish a document indicating what they think the protection zone should be, even if the province doesn't agree, hasn't given its approval or doesn't intend to act to protect the part it owns? If there were to be a recalcitrant province or territory, for example, this could be used as leverage. In other words, we couldn't force the province to protect the area under its responsibility, but we could publish a drawing of what the protection zone should be to protect the health of the first nation. Public pressure could then force the province to act.

Would this be a solution that would be allowed under the bill?

I don't know if you understand what I'm saying.

[Rebecca Blake]

Absolutely. I definitely appreciate the question.

It is aligned with the rights recognition components. Anything that would be on first nation lands wouldn't necessarily need agreement of the province. However, we do recognize that water flows, and so those pathways for that coordination are also provided for to help ensure that. First nations could pass a law on their first nation lands recognizing that this water flows, mapping their intake of water and their distribution of water as well.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

So this map could include areas that fall under provincial jurisdiction, correct?

[Rebecca Blake]

Yes, as part of first nations planning—

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

That's fine. I have one more question for you.

When it comes to drinking water management in a first nation, most of the time, the crux of the problem is the lack of adequate funding to maintain the system. This is often where the problem lies, as we've seen in the past. There has already been underfunding, due, apparently, to an equation that hadn't been updated.

How can Bill C‑61 ensure that the federal government will provide adequate funding to properly maintain the drinking water system? How can we ensure that there will be no funding gaps or shortfalls?

[Nelson Barbosa]

Yes. Thanks to the funding, there has been significant investment in the water space, including in operations. That was recognized by the Parliamentary Budget Officer a few years ago. But as it relates to Bill C-61, the funding framework that we had talked about previously outlines a number of things that must be considered as part of that framework, including the actual costs and the operations and maintenance of systems. It's considered in this bill under the financing section, as are many other things.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

The requirement, that they gave all of this, right?

[Nelson Barbosa]

Yes. The funding framework really, in my mind, one, doesn't exist today. The consultation around what is the actual cost for a number of things that you itemize in this bill and creating that funding framework is kind of item one. Two is the minister's use of public reporting of that framework. Those are also conditions of the proposed bill.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

I have one last question to ask.

Is this bill tied in with the Canada Water Act, and is there any overlap between the two?

[Rebecca Blake]

I appreciate the question. They are complementary in nature, absolutely. Our sister department, Environment and Climate Change Canada, is responsible for modernization of the Canada Water Act. Ultimately, though, they both touch water. They both have agreement-making abilities. This bill before you is really focused on first nations and first nations drinking water on first nation lands, but they are complementary in nature.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you, Mr. Chair.

[Joanne Wilkinson]

I'll just add as well that we did have officials from Environment and Climate Change Canada engaged on the water agency and the Canada Water Act as part of the dialogue table I referred to earlier.

Thank you.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you very much.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Scarpaleggia.

Mr. Lemire, you have the floor for five minutes.