Indigenous and Northern Affairs Committee on June 17th, 2024

[The Chair, Liberal, Patrick Weiler]

I'd like to call this meeting to order.

Welcome to meeting number 115 of the House of Commons Standing Committee on Indigenous and Northern Affairs. I want to start by recognizing that we meet on the ancestral and unceded territories of the Algonquin Anishinabe peoples and, as always, 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 resuming 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 all members and other in-person participants to consult the cards on the table for guidelines to prevent audio feedback incidents. Please take note of the following preventative measures in place to protect the health and safety of all participants, including the interpreters. Only use a black, approved earpiece. The former, grey earpieces must no longer be used. Keep your earpiece away from all microphones at all times, and 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 of this meeting.

With that, I would like to welcome our witnesses. We have, joining us by video conference, Ms. Merrell-Ann Phare. In person, we have Chief Lance Haymond from the Assembly of First Nations Quebec-Labrador, and Chief Sheldon Sunshine from the Sturgeon Lake Cree Nation.

Thank you, all, for being here today. There will be up to five minutes given to you for opening remarks, after which we will proceed with rounds of questioning. It might be that there is a bit of Euro Cup fever happening, but I'm going to be using this yellow card once we have 30 seconds left. Then I'll use a red card when the time has elapsed.

With that, I want to welcome you. We'll start with Ms. Merrell-Ann Phare.

I invite you to give an opening statement of up to five minutes.

[Merrell-Ann Phare, Lawyer, As an Individual]

Hi, everyone.

My name is Merrell-Ann Phare, and I'm legal adviser to the Assembly of First Nations on drinking water. I've been working on these issues since the expert panel on safe drinking water in 2006, and I am currently a member of their co-development team. They are presenting separately, so I'm here in my personal capacity.

I want you to know that, in my view, the bill is a vast improvement over the previous legislation that was repealed and, of course, over the situation that existed before that, which was a regulatory gap with no legislation whatsoever.

You've heard other witnesses talk to you about some of its key positive areas, such as affirming the inherent right to self-government over water and source water. There's a potential big game-changer in terms of how decisions are made about funding through a funding framework. There are improvements on standards for drinking water quality and quantity and waste water. There's a beginning of the process of supporting the creation of first nation water institutions, and, just generally throughout the legislation, you can see quite a bit on collaboration—the phrase is “consultation and collaboration”—and that is a positive relationship-building aspect.

Now, all of these changes—and there are many more in the bill that you're familiar with—are absolutely necessary, and they were negotiated by AFN and others. There was much input, as you've heard, through a co-development process. It wasn't perfect, and there are many ways it could be improved. I hope it gets improved over time, but that's how it has been developed so far, so I strongly support that the bill not be decreased in terms of the current clauses in there.

I wanted to point out one thing, though. Near the end of the co-development process, as the bill was near going into the House, there were some clauses that were added that AFN did not have a role in, so I wanted to speak to those ones, because there are some areas where they could be improved, and they're significant. Again, I don't think there's any circumstance in which this bill should be diminished or any of the clauses deleted or weakened, but there are definitely ways to improve it.

Here are three of them.

First, on inherent right, it's absolutely amazing, and long overdue, that the inherent right to self-government over water and source water is recognized. However, it's currently recognized off reserve only in a protection zone attached to the reserve or adjacent to the reserve. There's no legal reason for that. Source water is source water; water is water. If it's water, there are indigenous rights to water. They've clearly recognized them, and there's no need for the water to be adjacent. Legally, there's no reason for that.

The idea is that a federal-provincial-territorial agreement is required for first nations to implement their right off reserve, and again, that's in line with the federal inherent rights policy. I understand that, but it doesn't really make sense when it comes to water. Water requires all governments to be at the table and to negotiate the way their jurisdictions are going to work together. It shouldn't be that any other government is required for first nations to be able to do that. It should be up to first nations to decide when they feel that they need to work with other governments, just like the federal, provincial and territorial governments do. That's exactly the way the relationship works now, and first nations shouldn't be treated any differently from them.

The second idea is about the minister's obligation. The act currently does not make it absolutely clear that the minister must provide water that meets water quality, quantity and waste-water effluent standards. The current standard is a best-efforts clause, and it's only focused on water quality. That was added after, and I think you can see the problem with that. We've long since passed the time when this should be optional, or even best efforts. The only reason a minister shouldn't have to provide those three things is if the first nation has opted to exercise its jurisdiction on that matter, in which case it's fine, but in the absence of that, we have been, since colonization, long past the time when the minister should be required to provide safe drinking water, water quantity and waste-water effluent treatment.

The final one is the funding framework. You'll see that there's a section in there where first nations will work with the Government of Canada to develop a funding framework. That will assess needs, but what it also will do is set out how decisions are made and implemented, and that's the game-changer. First nations get to work with Canada to scope the needs and how the decisions will be made. Remember, Canada is in that conversation—

[The Chair, Liberal, Patrick Weiler]

I'm sorry, Ms. Phare. I'm going to have to ask you to wrap it up quickly.

[Merrell-Ann Phare]

Okay.

The idea is that a best-efforts clause is not sufficient for Canada to provide funding, and that Canada needs to make a full commitment after it has been part of the funding framework development.

Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Ms. Phare. I'm sure there will be questions from our members here about the points you raise.

With that, I will turn the floor over to Chief Lance Haymond from the Assembly of First Nations of Quebec-Labrador, for up to five minutes of an opening statement.

[Chief Lance Haymond, Assembly of First Nations Quebec-Labrador]

Good morning. Kwe. Hello. Bonjour.

My name is Lance Haymond. I'm currently the chief of the Algonquin community of Kebaowek, but I'm here today representing the Assembly of First Nations Quebec-Labrador, where I am the portfolio holder for housing, infrastructure and water.

As it's been mentioned, I'd like to acknowledge and welcome everybody to our ancestral territory. As I've mentioned on several occasions, it's always good to see you conducting your business, and we're grateful to have you here so that we can have this opportunity.

Thank you for giving me the opportunity to share the AFNQL's point of view on Bill C-61.

I've been involved in this process since 2009, when the Quebec region had its first engagement session on water on Bill S-11, before it was introduced and eventually died on the Order Paper with the calling of the election. I was also around when Bill S-8 received royal assent in 2013 and was repealed in 2022. Canada then committed to the co-development of new legislation, and we're currently discussing Bill C-61.

I've heard much criticism about this bill, about what's not in it and what's missing, but in criticizing it, we overshadow the important and significant progress we have made since seeing the first draft of this legislation, and it further diminishes the hard work, sacrifices and important contributions made by the team from the water secretariat at the Assembly of First Nations on this legislation. I think about former director Irving Leblanc, Kerry Black, Madame Phare, who just presented, legal counsel Stuart Wuttke, Ogimaa Kwe Linda Debassige, former chief Phil Fontaine, and our regional technicians and water coordinators, who were instrumental in getting important changes and additions to the legislation before it was tabled.

We are quick to criticize, because it's easy, but I believe in giving credit where credit is due. I want to acknowledge and thank Minister Hajdu for tabling this important legislation, and thank her team for working with the Assembly of First Nations and all stakeholders to get this far.

There will never be a perfect piece of legislation, but this is a far cry from where we started. I now believe that we have a chance to address the gaps, some of which were identified by Madame Phare. Our chiefs in Quebec are not opposed to the adoption of Bill C-61 and the eventual regulatory framework.

We did and continue to have concerns about the process. I've been around for a long time and can therefore say that a lack of consultation with first nations has often characterized previous attempts, whether it was Bill S-11 or Bill S-8. That lack of real co-development was undoubtedly a major concern for chiefs across this country regarding the development of Bill C-61.

Furthermore, in Quebec, we were put at a disadvantage a year ago, in February 2023, when we had organized and booked our engagement session for February 15 but weren't able to speak to the legislation because it wasn't officially tabled until the 17th. You can imagine it. We had signed an NDA—me, the water technician and the coordinator. We had a session with over 100 participants, but we couldn't actually talk about the contents of the legislation because it had not yet been officially tabled.

We've come a long way from those early disadvantages. We are now in a situation where, as I mentioned, we are agreeable to Bill C-61.

As for the bill itself, although it was not co-developed as planned, the text still evolved compared to previous versions. This is the first time I've seen our input included in its entirety in some areas, and the government going farther than expected in other areas. Despite an inadequate process, we have still made progress on the main gaps, which are inherent rights, funding, governance, standards, transboundary water sources and immunity.

For example, there is now a reference to the existence of the inherent right of first nations to self-government. The concept of free, prior and informed consent has been added to the principles section. There are some substantial additions to the government's obligations, such as doing its best to provide funding that is “adequate, predictable, stable, sustainable” and “needs-based”.

On the issue of transboundary waters, there is a mechanism for off-reserve collaboration regarding provincial, federal and first nations territorial jurisdiction. There are also added provisions related to the immunity of first nations employees.

These are a few examples of the progress made, but important issues remain. Important steps are ahead, and past mistakes have us very concerned. The issue of real co-development remains a great preoccupation as we take major steps in the implementation of Bill C-61—

[The Chair, Liberal, Patrick Weiler]

Chief Haymond, I'm afraid I'm going to have to ask you just to finish that thought, if you could, please.

[Chief Lance Haymond]

I mean namely the development of the funding framework and the regulatory framework.

Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Chief Haymond.

We'll turn the floor over to Chief Sheldon Sunshine from the Sturgeon Lake Cree Nation.

You have up to five minutes for your opening statement.

[Chief Sheldon Sunshine, Sturgeon Lake Cree Nation]

Thank you, Mr. Chairman.

Tansi. Honourable members of Parliament, I'm Sheldon Sunshine. I'm the chief of the Sturgeon Lake Cree Nation in Treaty 8 territory.

Thank you for this invitation to speak about Bill C-61.

Before I begin, I'd like to acknowledge that I'm speaking on the unceded lands of the Algonquin people.

Sturgeon Lake Cree Nation has over 3,800 members. We are one of the largest first nations in Treaty 8 territory. Our ancestors entered into Treaty 8 in 1899 with the imperial Crown. At that time, and until 1905, Alberta was not a province, and our people did not conceive that we would ever have dealings with a province. Our treaty is a nation-to-nation, international, sacred covenant that provides the legal foundations of this country.

Since time immemorial, our territory has been surrounded by water. We rely on Smoky River, Iosegun River, Goose Lake and Sturgeon Lake. The Smoky originates in the Rocky Mountains near Jasper and then feeds the Peace River, a navigable river under federal legislation. We depend on these waters to harvest fish and large game, which sustain our people. Our lands are home to endangered species such as bull trout and woodland caribou.

Our territory is located in the northwestern part of what is now known as Alberta. Many parts of our territory are now industrialized and surrounded by mining in Grande Cache, forestry near Fox Creek, and conventional oil and gas projects, including abandoned, orphan wells. All of this development is near, on or in the water we rely on to continue our way of life and our livelihood and to exercise our treaty and inherent rights. We are experiencing unmitigated cumulative effects in our territory and in our waters, which is a breach of Treaty 8.

Before getting into Bill C-61, I'd like to tell you about the water in our treaty. At the time of the treaty, we were a matriarchal society, and our women were the water keepers. They were not included in treaty negotiations, so water was not discussed. We did not treaty our water. Water was non-negotiable for our ancestors, as it is for us today.

Since 1899, the time of the treaty, the government has encroached on our treaty jurisdiction over water. For example, through their interpretation of the Constitution of 1867, the Crown has said that the province has jurisdiction over water, based on words like “local works” and “property”, for example. Like our treaty, this is not explicit. Unlike our treaty, it makes no sense. For example, there is no property in water under any law.

Bill C-61 is the latest attempt to encroach on our inherent authority over water. The government is using legislation to override our treaty promises—their treaty promises. This is the fundamental problem with Bill C-61 and why we will not accept it, even with amendments.

I want to be crystal clear today that we do not need legislation to recognize and affirm our treaty. We need the space and the capacity to develop our own laws. This requires positive action by the federal government, given the effects of decades of neglect.

However, Bill C-61 does not just infringe on our jurisdiction. It also creates a two-tier water system where the first nations will continue to be denied the human right to water, and it downloads federal liability to the nations.

Some of the most serious issues we have identified in Bill C-61 are the following.

First, the legislation does not recognize the human right to water recognized in the legislation. There is no guarantee for safe drinking water. Instead, it creates a different set of rules for first nation lands. Calgary, through the water main break, recently learned what we go through on a daily basis. We still have boil water advisories, and we need a new water treatment plant, but the cost is estimated at around $50 million.

Second, this legislation will do nothing to affect the billions of litres that are removed from our waters through provincial water allocation licences by the province in violation of Treaty 8.

Third, this legislation will do nothing to protect our water and our treaty rights from the ongoing threats of contamination. For example, last year, the CST coal mine near Grand Cache released more than one million litres of toxic water directly into Smoky River. We were never notified. This is 200 kilometres upstream from us, much like what is being faced by those communities downstream from the Imperial Oil Kearl spill and seepage. This is one example. Bill C-61 will do nothing to stop this poisoning of our water and the fish we depend on to exercise our treaty and inherent rights.

Fourth, the legislation imposes a federal framework by which we can create our own laws, but we don't need legislation to do so. And if we don't pass our own laws, the legislation says that we will default to the federal regulations. The federal regulations are at the whim of the minister in place. This is not an opt-in. It is not self-government.

Fifth, the legislation will download federal responsibility onto us, with no guarantee of funding backstop. The federal government has fiduciary responsibilities to us. We will need them to live up to these duties. We don't need their attempts to give us self-government without any guaranteed capacity funding. We will be held liable for the issues that are within the federal government's fiduciary responsibility to us right now.

In conclusion, Mr. Chair, the Sturgeon Lake Cree Nation and Treaty 8 territory are firmly against this legislation, as we see a grave infringement on our jurisdiction and rights. We ask that you reject Bill C-61 in its entirety.

I thank you for your time.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Chief Sunshine.

That concludes the opening statements. We're going to start our first round of questioning.

This is a six-minute round, starting with Mr. Melillo.

The floor is yours.

[Eric Melillo, Conservative, Kenora, ON]

Thank you very much, Mr. Chair.

Thank you to all the witnesses for being here on this important discussion.

Chief Sunshine, thank you for your comments. I think you spoke very well and very strongly in those opening remarks. I'd like to ask you a few questions about them.

Before I get into some of the details of your comments, just off the top, this is something the government claims was co-developed, but we've heard from a number of first nations that do not feel they were adequately consulted. I'd like to get your take on that and on what the government could have done differently to ensure that there was a proper consultation process.

[Chief Sheldon Sunshine]

Thank you.

I agree with those sentiments. Minister Hajdu came out to Treaty 6 territory in Edmonton. I expressed those same sentiments and concerns, that Sturgeon Lake Cree Nation was not properly consulted when this was developed. I was not in the seat that I sit in today.

With everything that faces our first nation communities, we haven't had the opportunity to really take a deep dive into this until now. That's the reason I'm here.

[Eric Melillo, Conservative, Kenora, ON]

I appreciate that.

You mentioned in your opening comments that there are a number of future regulations to be made at the whim of the minister. You identified that as a concern, and I share that concern as well.

In one instance, this is the case when it comes to defining protection zones set out in this legislation. A representative from the Department of Justice was here not long ago. It took him a few minutes, but I was able to get him to admit that this is the case. Although the legislation says that the minister will co-operate, there is no defining characteristic that says the minister has to have the consent of the first nation—or of the province or territory of jurisdiction, for that matter—to define a protection zone. It's just up to future regulation.

Do you think, based on what you said, that the minister should have that power, or do you believe that the minister should have to have the consent of the first nation before defining the protection zone?

[Chief Sheldon Sunshine]

I absolutely believe that it should have the first nation's consent, as I mentioned, on the signing of a treaty. That's one thing that's been forgotten by Canada. They put us in a box and they forgot about us. Without going into too many details surrounding that whole concept, I absolutely agree that first nations should be party to those decisions.

[Eric Melillo, Conservative, Kenora, ON]

I appreciate that.

You mentioned that even with amendments, you would not support this legislation going forward. Could you highlight that a bit more?

A number of issues have been identified in Bill C-61. We hope to be able to fix and amend those things. You're still saying that even if it is amended, it's not going to be good enough. Did I understand you correctly?

[Chief Sheldon Sunshine]

Yes. That is correct.

[Eric Melillo, Conservative, Kenora, ON]

Could you expand on why that is the case?

You had some strong comments. I think you said this is legislation that would override the treaty promises. Could you expand more on what you meant by that?

[Chief Sheldon Sunshine]

There are a few examples.

We don't need the law to implement a treaty. We need recognition of treaty jurisdiction. That was already done in the Constitution Act of 1982. What we need is what the courts have been calling for in B.C. and Ontario, and even the Supreme Court. We need the court to honourably and diligently implement the promises. Implementing treaty does not mean creating neocolonial legislation like Bill C-61, which tells us what we need to do.

[Eric Melillo, Conservative, Kenora, ON]

I appreciate that. Thank you.

You mentioned some of those concerns off the top.

I'll go back to another quote from Rupert Meneen of Tallcree First Nation, also in Treaty 8. He has said previously on the record that the government was dumping responsibility for water and waste-water infrastructure prior to any discussion about transferring jurisdiction.

Do you agree with that sentiment from Chief Rupert Meneen?

[Chief Sheldon Sunshine]

Yes, I agree with that.

[Eric Melillo, Conservative, Kenora, ON]

Do you care to expand any more on that characterization and what needs to be done to ensure that the transfer is done properly?

[Chief Sheldon Sunshine]

For a lot of those challenges that we're facing in the first nation—I speak for my first nation alone, as I am chief of Sturgeon Lake Cree Nation—those sentiments are throughout, whether we're talking about co-legislation, development of health or water. It's everything.

From where I sit, we are at a disadvantage in every aspect. You know, capacity.... I mentioned in my statement that we need assistance to develop our laws. We have always had laws. Before contact, before Europeans settled this land and we agreed to have them settle this land, we had our own laws and legislation. That's one thing that I think is important. We should have our say and, as I mentioned, help with developing those.

[Eric Melillo, Conservative, Kenora, ON]

Thank you very much. I think that's pretty much my time.

I appreciate all those comments. Thank you very much for being here.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Melillo.

We'll move on to our second questioner in the first round.

Mrs. Atwin, you have the floor for six minutes.