INAN Committee Meeting

     I call the meeting to order.

    Welcome to meeting 130 of the House of Commons Standing Committee on Indigenous and Northern Affairs.

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

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

    We're going to pick up where we left off yesterday, but first, to help us with clause-by-clause consideration, I'd like to welcome our witnesses back again this morning.

    We have Nelson Barbosa, director general, community infrastructure branch, Department of Indigenous Services; Rebecca Blake, acting director, legislation, engagement and regulations, Department of Indigenous Services; and Douglas Fairbairn, senior counsel, Crown-Indigenous Relations and Northern Affairs.

    I also want to remind members that amendments are confidential and that subamendments are to be shared electronically or on paper in both official languages and sent to the clerk for distribution.

    With that, colleagues, let's jump right into it. When we left off last night, we were on the new NDP-22. I will open the floor up to Ms. Idlout, who had the floor when we were wrapping up yesterday evening.

    [Member spoke in Inuktitut, interpreted as follows:]

    Good morning.

    First of all, I want to recognize that today is International Inuit Day. I am proud as an Inuit that we are recognized. I hope that you will be able to share this message. Our fellow Inuit are resilient and strong, surviving in the harsh Arctic. We come here today because of their strength, the strength of the Inuit.

    Our language was being eradicated, so I am proud to be able to speak my language here in this committee. I'm also grateful to this committee for giving me the opportunity to speak Inuktitut. We have an interpreter provided, so I will begin.

     NDP-22 was given to us by the Assembly of First Nations. I want to remind you who gave us the proposal for this amendment. I identify who gave us the proposal to remind you that when you vote the amendments down, you are voting down their proposals.

    Only 31% the first nations were consulted when Bill C-61 was being developed. There were a whole bunch of first nations who were not included. First nations will be affected by this, so what they want to see protected will have an impact on this if it is to go ahead. Let's recognize where these proposals come from.

    NDP-22 states that indigenous people have distinct cultures. If they do not come to an agreement, they can try to work it out together. They want this to be in your considerations regarding fresh water protection. It's to include their language and their culture. It follows that when there are amendments to be agreed on, first nations' laws should be considered.

    Thank you.

     Thank you very much, Ms. Idlout.

     I'd also like to wish us a happy International Inuit Day. One thing that makes this committee very special is that we have live translation. I want to also recognize the great work of our interpreters here today, because I think it is a model for the hard work that we need to do to restore and revitalize indigenous languages right across the country.

    With that, I have a speaking list going.

    Ms. Atwin, I have you first up.

    Thank you very much.

    Happy Inuit Day as well. I think that's amazing. I wasn't aware, so I'm grateful that you brought that to our attention.

    It's also incredible to hear Inuktitut and have amazing interpreters to assist us in this committee.

    Thank you so much, Lori.

    I'm wondering if our expert witnesses could explain what the implications would be of just adding the amendment. It's quite prescriptive compared to what we had. I'm just worried about what that implication might be.

    In terms of your interpretation of it as being quite prescriptive, I would tend to agree. It would provide, by federal law, a way for first nations to work with first nations on any kind of competing interests among first nation laws. There could be different approaches when it was left up more to a first nation law for how they would work together within their individual laws as opposed to in federal law. That would be the one consideration.

     I also understand that the implication is that there would be the potential for protection zone agreements that would come after the bill comes into force. Does this supersede those? Would it complicate that process? How would it impact that?

     It may potentially complicate that process, but as you mentioned, there are existing provisions under agreements in the bill as it stands right now to allow for those agreements to take place. They would take into account individual cultural preferences of first nations and those individual first nation laws as well.

     Thank you.

     Thank you very much, Ms. Atwin.

    Are there any other colleagues who would like to make an intervention?

    Go ahead, Mr. Melillo.

     Thank you, Mr. Chair.

    I've always been confident in my ability to read, but I understand that there are two different texts and I haven't been able to discern exactly what the difference is.

    Before I go any further, I just want to clarify if the text is the same in the new amendment or if I might be missing something. Is there a difference?

    Mr. Melillo, this would have been part of the package that was distributed on Monday.

    I understand. I have both copies. I have the original NDP-22 and the new NDP-22, and that's what's caused my concern. I'm not sure exactly what the difference is, so I want to make sure there's nothing I'm missing before I go further.

    Can we maybe have it read to us word for word?

     I have a copy.

    Are you also not sure?

    We're comparing the new and the old, and they're exactly the same.

     I could turn it over to Ms. Idlout, if she'd like to speak to any differences.

    [Member spoke in Inuktitut, interpreted as follows:]

    I really don't know what the differences are. I think it's been revised by the staff. I'm sitting here with Sébastien. We reviewed this, and the new amendment and the old amendment look the same.

    If this can be clarified, I would also appreciate it.

    Thanks, Ms. Idlout.

    Having reviewed it, there is no change in the English version. There are some small changes that need to be done in the French version, but they don't in any way change the meaning. It was to have proper translation.

    Can I ask another question?

    Yes, Mr. Melillo.

    Thank you, Chair.

    I wanted to make sure that was clear before I move forward.

    To pick up on Ms. Atwin's question about complications around protection zones potentially arising from this, I just want to be clear about where that complication would lie. Would it be in defining the protection zones or how first nation law would apply in protection zones? Is it maybe both?

    Maybe you could expand on that a little bit more.

     It is uncertain where the complication would lie. It's really about what's in first nations laws and how those would work together.

    First nations laws under section 6, which we looked at yesterday, would really be up to first nations themselves. Therefore, from a federal perspective, we wouldn't know exactly what was in that first nation's laws until we worked with them on the agreements to implement those laws, as well as publication of those laws. It's more about the unknown in the future.

     Thank you. I'm good.

     Thank you very much, Mr. Melillo.

    Ms. Idlout, go ahead.

    [Member spoke in Inuktitut, interpreted as follows:]

    Regarding clause 11, after reading Bill C-61 and reading the NDP-22 amendment, it is not included in the plan.

    Will the protection plans be affected?

    In terms of the existing clause 11—just to clarify that's what you mean in the bill—it really provides interaction with first nation laws. Protection zones would depend upon all parties coming to an agreed-upon approach for coordination of those laws. It would depend on not just first nation laws but also provinces and what they would like to see in the coordination of their laws.

    Ms. Idlout, go ahead.

    [Member spoke in Inuktitut, interpreted as follows:]

    Thank you for clearly answering my question.

    I have a concern about the Liberals and the Conservatives feeling that it is too prescriptive. They are concerned, but I want to remind you that this was proposed and requested by the Assembly of First Nations. They have put out there what they feel strongly about, and from what I think, the first nations people would know that this is not coming from the federal government. It's the first nations people who are the nation requesting this.

    Thank you.

    Thank you very much, Ms. Idlout.

    Mr. Battiste, go ahead.

     I understand, and I'm reading the differences in the texts, and it just seems that the one that's currently in the legislation is a lot cleaner, whereas the amendments are now offering really defined ways for how first nations should interact with each other, as opposed to leaving that to them. It appears that we're telling them that this is how they should be looking at it.

    NDP-22 says, “taking into account factors such as geographic and hydrological proximity and the First Nations’ dependence on the water or source water”.

    We just leave what moves forward open to first nations to determine within themselves, based on their own laws and their own beliefs. It's cleaner in the government version.

    However, I'll ask the expert: Is there anything in this that wouldn't already be included in what's in the government's more concise version of this clause?

     Thanks for the question. Good morning, everyone.

     The act is clear in terms of the provisions and law-making ability of first nations—what law-making ability they have and their ability to entrench laws on their lands.

    Then, to the point of protection zones, again, it's about coordination of laws, and that could be among first nations as well, as we discussed.

    I believe, to your point, that much of the clarity of law-making is already well entrenched in the legislation itself.

    Does anything in the current way it's written limit the factors? Can these factors be considered even if these amendments don't pass as written?

    What I'm getting at is this: Do we need to go through all of these, or do they have the ability within the current text of the current legislation?

     In my mind, the ability for first nations to agree on laws and their ability to talk about how law-making works in their space already exists in the legislation.

     Thank you, Mr. Battiste.

    Next I have Ms. Idlout.

    I'm going to speak in English, because there are too many technical terms to interpret in Inuktitut.

    In terms of what is being presumed to be more concise in clause 11 and what my amendment is trying to do, is there anything in the legislation that provides for the opportunity for first nations that might...? We know that different first nations will have their own sets of laws. If there are two different first nations that have inconsistencies or conflicts within each of their own laws, are there spaces where, absent my amendment, the opportunity for conflict resolution is created?

    What clause 11 does not do, which my amendment does, for example, is assess distinct traditions, customs and practices of first nations. I need to point out that this is not just about conciseness. Clause 11 only speaks to first nations laws prevailing with respect to different sections of the act as well as legislation in Canada, but not with respect to conflicts or inconsistencies that might exist between first nations.

    I appreciate the question.

    Subclause 6(1) would be one piece that I would point to that's currently in the bill. Under paragraph 6(1)(a), those are first nation laws on first nation lands. In that case, first nation laws would have the ability to put those conflict provisions within their laws themselves. They would uniquely apply to those first nation lands, so a conflict would be very unlikely.

    In addition, there's paragraph 6(1)(b) around protection zones. They provide pathways for coordination and collaboration among all parties, including provinces. That could also be potentially through an agreement as well, as is found further on in the bill. Those agreements could also address those conflicts between any first nation laws, as well as provincial and federal laws, and how they work together and are coordinated.

    Thank you very much, Ms. Idlout.

    Next on the speaking list, I have Mr. Melillo.

    Thanks again, Chair.

    Given everything that's been said, I agree with much of what has been said about this, and how specific it is. NDP-22 (2) also notes “the inconsistency or conflict may be resolved”. I think that makes it a little less specific. The question would be, would any of this truly be binding? It's all very optional, and it doesn't seem binding to me.

    Would you agree?

    The term “may” would not be binding.

     There we go.

    That's all I have.

    Next I have Mrs. Atwin.

     Thanks, Mr. Chair.

    Conciseness is important, but it's also about self-determination for individual communities and their leadership and governing bodies and how they would choose to move forward on this. Each coordination agreement or protection zone agreement could specify and further expand on these ideas, again for each individual nation.

    I think it actually limits their ability to have that self-determination when having those negotiations. Again, the prescriptive piece is not necessarily taking anything away, but it's allowing them to be the stewards of those conversations moving forward.

    Thank you very much, Mrs. Atwin.

    Seeing no further hands up, let's move to a recorded vote.

    Shall NDP-22 carry?

    (Amendment negatived: nays 10; yeas 1)

    The Chair: With that, we are going to move on.

    Shall clause 11 carry?

    Go ahead, Ms. Idlout.

     Can I vote no?

     Yes, you can vote no.

     Can I ask a technical question?

    Sure.

     What happens when I vote no when you ask if the clause will carry?

     Ms. Idlout, you can ask for a recorded vote.

     I think she's also asking about “on division". Basically it means we oppose, but it still passes. It's a way for the opposition to—

    The difference is there are no names on division.

     Can we have a recorded vote?

     Yes, absolutely. The question is, shall clause 11 carry?

    (Clause 11 agreed to: yeas 10; nays 1[See Minutes of Proceedings])

     (Clause 12 agreed to on division)

    (Clause 13 agreed to on division)

    (On clause 14)

    The Chair: The amendment we have for clause 14 is NDP-23. I will open up the floor to a mover for NDP-23.

    Go ahead, Ms. Idlout.

     [Member spoke in Inuktitut, interpreted as follows:]

     Thank you.

    I move amendment NDP-23. It was given to us by the Assembly of First Nations. It's to add that the minister will have to work on freshwater sources on first nations lands. The British Columbia Assembly of First Nations also requests changes to strengthen clause 14 by adding paragraphs 14(1)(a) and 14(1)(b) and subclause 14(2).

    Thank you.

    Thank you very much, Ms. Idlout.

    Is there debate on NDP-23?

    I have Mrs. Atwin and then Mr. Melillo.

     Thank you, Mr. Chair.

    I know that the proposed measure that's already in the bill was developed with first nations to ensure that decision-making over those minimum standards lies with those individual first nation communities.

     I'm just concerned, so I'm going to ask our experts.

    Could this require the federal government to then impose standards on a community by default instead of starting from that co-development space?

    Thanks for the question.

    Clause 14, as written, begins with “Subject to the choice” of a first nation. That's the choice over Canada's drinking water guidelines or provisions found in the applicable province or territory. First nations would inherently have the ability to apply standards based on their choice.

    The amendment begins with “The Minister must ensure”, which removes the concept of choice. I would also point to clause 18, which speaks to provisions if no choice is made.

    It seems that as written, clause 14 and subsequent clauses that are speaking of waste water allow first nations to apply choice on standards, and then, should a choice not be made by first nations, there are subsequent provisions that invoke co-development with the minister.

     Thank you.

     Thank you very much, Ms. Atwin.

     Next I have Mr. Melillo and then Mr. Battiste.

     Thank you, Mr. Chair.

     I had the same question, so I appreciate the answer you already gave, Mr. Barbosa.

    Looking at this, I think I understand the intent. Obviously, we want to have strict water standards and high-quality water standards, but I do worry about the power, for lack of a better word, that the minister would have, potentially, over a first nation in determining those standards if this were to pass.

     I think you just answered this question, but just to clarify it for myself, looking ahead to clause 15, would the principle in NDP-23 already be covered through the process set out in clause 15?

    Thanks for the clarification.

    I think the concept to me is choice or autonomy of a first nation in the choice of standards—in this case for clean drinking water and later in waste water—between national standards or provincial and territorial standards, which are sometimes more strident.

    If there is no choice made, I would point to clause 18, which talks about the causal impact of the lack of application of standards and then what would be the effects and relationship with the minister. I believe those things are covered in clause 18.

     Thank you.

     Thank you very much, Mr. Melillo.

     I have Mr. Battiste next, and then Mr. Shields.

    Actually, Mr. Chair, I think Mr. Melillo covered what I was thinking. If we give the minister these powers instead of giving the communities the choice to choose, I think that's....

    I agree with those comments and the comments of the witness. I'll retract my question.

     Thank you very much, Mr. Battiste.

    Go ahead, Mr. Shields.

     Thank you, Mr. Chair.

    I'd just like some clarification. When we're talking about “choice of standards”, can you clarify what choice of standards would be available under the legislation?

     Grosso modo, there are two buckets of clean drinking water standards. There are national standards, and then provinces and territories have their own standards that apply above and beyond national standards. I think in the province we're in today, post Walkerton, there's a considerable increase in standards for clean and safe drinking water, potable water and access to water.

    There are, in this country, geographically specific standards that are provincially and territorially created. Then there's a national minimum standard that creates a minimum standard for all Canada's drinking water.

    I have a question on that. I'm very familiar with Walkerton. I'm very familiar with what provincial governments talked about in establishing standards in their provinces across Canada following that. There was a lot of similarity in those standards provincially across the country as they were developed. Everybody was talking about it. Every province got into it. I remember being there at that point.

    In the choice between national standards and provincial standards, are you saying that national standards are higher than provincial standards?

     I don't believe I said that. I said that Canada's drinking water guidelines provide minimum standards. Provinces and territories have standards above and beyond those. In the concept of choice, there are two windows.

     That's interesting.

    Thank you.

     Thank you very much, Mr. Shields.

    I see that Ms. Idlout has her hand up.

     [Member spoke in Inuktitut, interpreted as follows:]

    Thank you for clearly defining it.

    You just spoke about how it would create co-development. If NDP-23 were to not proceed, are there other co-development plans around this?

    As my colleague mentioned, the way the provisions are currently drafted is really around first nation choice between those national guidelines and provincial guidelines. Through the engagement process, we have heard a multitude of views, especially around how strong Ontario provincial standards are and a desire to apply them. That won't necessarily apply to every first nation across present-day Canada, so it's to provide that choice.

    Then, as my colleague mentioned, clause 18 does provide pathways if a choice is not made of how to apply the strongest standard to ensure safe drinking water in those first nation communities.

     Thank you very much, Ms. Idlout.

    Next we have Mr. Shields.

    I know these are minutiae, but you used two words: “guidelines” and “standards”. Anybody who's in this business knows they are not guidelines. They are standards, and you comply.

    I just wanted to make that clear.

     I appreciate that. I was just using the title of those standards.

     Okay.

    Thank you.

    Thank you very much, Mr. Shields.

    I now give the floor to Mr. Lemire.

    Thank you, Mr. Chair.

    I think we need to implement the strictest standards, but that has to come with funding.

    Doesn't this create more of an obligation for the minister to ensure funding to meet the highest standards? I mean the ones in NDP‑23.

    Funding is a provision we'll find later in the bill, including the establishment of a funding framework, which will consider a number of things: operations and maintenance, monitoring, enforcement, governance and actual costs, so regardless of the path chosen by the committee on the amendment and the provision in the bill, the funding framework and the co-operation around it are found in clause 27.

    Thank you very much, Mr. Lemire.

     Seeing no further hands up for debate, let's move to a vote.

    Shall NDP-23 carry?

    NDP-23 is defeated, so—

     Go ahead, Monsieur Lemire.

    It was adopted on division, but we would have voted in favour of the amendment.

     NDP-23 was defeated.

    You can ask for a recorded vote.

    The outcome would be the same whether it was defeated by a vote of 10 to one or nine to two.

    I just wanted to express my support for this amendment.

    Okay. We're going to do a recorded vote so that we have it itemized.

    (Amendment negatived: nays 9; yeas 2[See Minutes of Proceedings])

    The Chair: This takes us to the vote on clause 14.

    Shall clause 14 carry?

    (Clause 14 agreed to on division)

    The Chair: This then takes us to new clause 14.1.

    We have amendment NDP-24. I'll open the floor up to a mover.

    Go ahead, Ms. Idlout.

    [Member spoke in Inuktitut, interpreted as follows:]

    Thank you.

    This item was given to us by the Assembly of First Nations. If you say no to this, you will again be saying no to the Assembly of First Nations. I am trying to strengthen standards. For example, first nations have treaty rights, and it's important for their rights to be included. I want to amplify that.

    Thank you.

     Thank you very much, Ms. Idlout.

     NDP-24 has been moved.

     Is there debate on NDP-24?

    Go ahead, Mr. Battiste.

     Yes, I'm just wondering.... We've heard of the treaty right to clean drinking water. In most of the treaties that I've taken a look at, there would never have been the contemplation that at some point in our history water wouldn't be readily available. Are there any treaty clauses you're aware of that actually speak to the right to clean drinking water?

     I understand completely that it should be an inherent right. It is in article 25 in UNDRIP. Are there specific details about the rights to clean water in a treaty out there?

    In the Mi'kmaq treaty, it's not there. I'm wondering if there's a clause in any of the treaties that shows the foresight that people might pollute their water sources and would never be able to have clean drinking water.

     To your question, no, we're not aware of any historic treaties that mention drinking water. There are modern treaties that do have elements of water included in them. This provision seems focused on treaty rights, which are fairly broad, so it might involve modern treaties as well. In those treaties, water is already covered due to negotiation between first nations and the government over the years.

    Thank you very much, Mr. Battiste.

     Next I have Mr. Schmale and then Ms. Atwin.

     Thank you very much, Chair.

    In this amendment is again something I've brought up before. It reads “in a protection zone under the jurisdiction of” first nations.

     Since we haven't defined what a protection zone is yet, I decided to look at Kawartha Conservation's website, because I'm from Kawartha Lakes. They haven't defined what a protection zone is either. However, they have listed 22 activities that are regulated in a protection zone. There's still no definition, but they're in a protection zone.

    As I understand it, in this legislation, if passed, the minister has some pretty significant power to decide what can or cannot be done in that protection zone. Am I correct?

     It's part of the regulatory process, which includes consultation and development of that regulation, but yes, it's part of the regulations.

     I did some more reading here, and some of these activities that are regulated under Kawartha Conservation were developed through the City of Kawartha Lakes. They had a public meeting, etc., and I understand there was a process.

     I think, again, when we aren't defining this and taking the time to do so, we are in fact potentially giving some extraordinary power to the minister and officials within that department to create policy and guidelines, and the enforcement of law given to them in part in this piece of legislation might not give impacted individuals, who may not pay attention or have an interest in that area until a certain time, the ability to raise concerns or have input.

    In fact, outside this passing, Parliament will not have the ability to vote on these measures in an individual manner as more and more regulations are imposed. We will then have regulations being added that have the power of law and the penalties to go with them, but we're not defining what we're talking about.

    This is, to me, very open-ended, while at the same time, regardless of what happens with this legislation, the government can still, through the department, continue to fund water systems, fund training and fund the distribution of parts, and continue to upgrade systems as technology evolves. This is putting into the hands of the minister an extraordinary amount of power that we have not actually defined.

    Again, I just keep going back.... We're potentially going to pass a piece of legislation through which, if we don't do the work here and start defining some of this stuff, a minister and the department could start to add restrictions on pieces of land and on water, such that the minister might wake up one day and think, “Well, I want to impose this regulation through the department.” He or she might have a bad day and throw that in, and because we haven't defined it, they can pretty much do whatever they want.

    I still think we should be doing the work here, honestly.

     Thank you, Mr. Schmale.

    Next I have Mrs. Atwin, and then Mr. Zimmer.

    Thank you.

    First, I firmly believe that if we had upheld our treaty responsibilities as a partner in Canada, we wouldn't be in the position we are in right now. I just want to put on the record my deep respect for the treaty relationship.

    I do have concerns, though, that this could perhaps be outside the scope of the bill. Would this amendment attempt to create authorities over treaty lands outside of first nation lands as well? Can you just explain the implications of including this piece?

    I also want to add that we do want to continue the conversation more broadly about treaty rights to water, which does come in an amendment further down the list.

     I appreciate the question.

    Yes, this amendment as currently drafted could be on first nations lands and off of first nations lands as well.

    Going back to the protection zone comments, as the bill currently states, it's a two-stage process. The first stage would be the minister doing regulations defining a protection zone in consultation and collaboration with provinces and first nations and other federal ministers. The second stage would be determined by the parties, meaning that first nations, provinces and Canada would all have to agree on how those protection zones were applied in that protection zone.

    It is a multi-stage process, but you are correct that this amendment does have implications on first nations lands as well as off first nations lands.

    Is it within the scope of our bill, or would it extend further?

     It is unlikely to be within the scope of the bill without provincial agreement.

     Thank you very much, Mrs. Atwin.

     Next I'll go to Mr. Zimmer.

     Thank you, Mr. Chair.

    Kind of going off of what my colleague Mr. Schmale had talked about, once you give that kind of authority to the minister, especially a radical minister....

    I'll give you an example. We dealt with caribou closures in my riding. It's related to what we're talking about with protection zones not being defined. The then premier, an NDP premier, was supposed to consult with local individuals in the northeastern part of British Columbia. There were vast consultations done. There were a lot of conversations. There were community meetings. There was feedback.

    Can we guess how many recommendations the premier took from those meetings? It was zero.

    We had a radical minister go ahead and implement all these closures. One minister's decision affects us even today on moose closures, industrial development and all kinds of implications.

    Not defining it in this piece of legislation, as I said last night, really puts this whole bill.... It's going to land in the courts and it's going to be there for a while because we're not defining these kinds of important things. You can bet the provinces will challenge it. We've had first nations testify at our committee that they will be challenging it. If we don't define it clearly, it puts a big bull's eye on this bill to be attacked on multiple fronts.

     I understand what the Liberals across the way are trying to do. Again, they had nine years to get water done. It's still not done. This is kind of an excuse: “Hey, guys, this is our excuse. This is in the way of getting water done.”

    It was supposed to be done in 2021. Really, they could have gotten it done regardless of this particular bill.

    I'll just leave that out there. Thank you.

     Thank you, Mr. Zimmer.

    Next I have Ms. Idlout, Mr. Carr and then Mr. Lemire.

     [Member spoke in Inuktitut, interpreted as follows:]

    I would like to remind you of what I've been saying. First nations and indigenous people had their own sets of laws protecting their lands and waters before settlers came in. They were protecting their fresh waters and stewarded the land for many years, for millennia.

    When Canada became a country, first nations and indigenous people were robbed. They weren't just robbed; their children were taken. First nations were told, “This is how much land you will have.” Their land was stolen. Their water sources were stolen.

     Regarding Bill C-61, when it's pertaining to first nations people, it says that this right will be given back to the first nations. However, the way it's written, and from what I'm hearing, it will not be given with full strength. You will be giving only a portion of it, because you are concerned about when you were robbing us of our way of doing....

    I will be pushing this forward and pushing for this because there was a co-development with first nations, and they were co-developing this with the federal government. When they are trying to make amendments for these standards, they know who they represent, and the people they represent have said that this is an important item.

     I have to remind you, as members of Parliament, that we have to take this into consideration because we need to give this back. We know this needs to proceed. Too many first nations, Inuit and Métis don't have adequate fresh water. There are too many boil water advisories, and not enough funding is provided.

    You're saying we'll give this back to them, but I am concerned about the questions I'm hearing and I'm trying to remind you that we need to give this back with strength, with tangible outcomes, because we need to work on our reconciliation.

    Thank you.

     Thank you very much, Ms. Idlout.

    Next on the speaking list is Mr. Carr.

    Just very quickly, Mr. Chair, for the record, in response to something Mr. Zimmer said—and he seems to have difficulty resisting the urge to take partisan shots—I will remind him that this is not a government amendment. When we talk about the government putting forward things to try to disrupt this legislation, I will respectfully remind him that the vast majority of amendments put forward are not government amendments.

     We're very serious about seeing this move forward. I appreciate his contention about the past nine years, and there is certainly some legitimacy and room for discussion to debate where we are now. However, the point is that at this moment in time, these amendments that are holding us up at this part of the process are not government amendments. For the record, I'm sharing that with the committee, Mr. Chair.

     Thank you, Mr. Carr.

     I have Mr. Melillo next on the list.

     Thank you, Mr. Chair.

    I have a few questions.

    I hope I'm not reiterating anything. There's been a wide-ranging discussion on this, but I'll try to come back to some specifics.

    There's the idea of meeting “the First Nation's needs for the purpose of exercising its Aboriginal and treaty rights”. What those needs are is vague. Are there any thoughts on how that would be defined or how that would be executed, should this pass?

    I would tend to agree that it is vague.

    I would also point to the broader references in the Constitution around aboriginal and treaty rights, which include Inuit and Métis as well. In terms of the scope of the bill and the fact that this bill is being focused on first nations only, I would also add the point, in terms of clarity, that it would apply only to first nations.

     That's right.

    My concern is that I'm not sure how the standard, which is undefined, would be met, or how it would be monitored. I don't know if you can comment further to that, but I appreciate your clarification in the previous answer.

    I'll leave it at that, unless you have any other comments.

     Thank you, Mr. Melillo.

    Mr. Lemire, you have the floor.

    Thank you, Mr. Chair.

    There is one question that remains unanswered, and I would like to put it to you, Mr. Barbosa.

    How can we make sure that water becomes a priority and is available to human beings?

    When it comes to setting priorities for drinking water, first nations take a back seat to many other essential and less essential services.

    How can we ensure that first nations receive greater consideration and are prioritized? A treaty may not be the way to address this, and adding a provision in the bill won't solve the problem, either.

    Thanks for the question. It's a big one.

    I would say a couple things to take it back to the bill. There are a series of provisions about rights, standards, regulations, water quality and water quantity, which we're getting into now. I would also point to the amendment passed a few days ago, which was about the duty of Canada to provide, in domestic law, clean and safe drinking water to first nations, which is a historic and significant commitment that has not existed.

    The compounding factors around quality; quantity; regulations; standards; the funding for capital, infrastructure, and maintenance; and the historic provision of domestic law provide a fairly robust regime, both legislatively and with regard to policy, to support the provision of clean and safe drinking water.

    Thank you very much, Mr. Lemire.

    Next I have Ms. Idlout and Mr. Schmale.

     I will be asking my question in English, because it's kind of technical.

    With regard to the wording of proposed clause 14.1 in NDP-24, it states in the middle of the paragraph, “must at least meet the First Nation's needs for the purpose of exercising its Aboriginal and treaty rights, among other purposes.”

    Is that not clear? It says, “for the purpose of exercising its Aboriginal and treaty rights”. Is it okay in the way it's worded? It's not creating a debate about what treaty rights are, because that's not what the provision says; it's asking for an amendment that allows “First Nation's needs for the purpose of exercising its Aboriginal and treaty rights”.

     I appreciate the question.

    In terms of what the provision reads, the lack of clarity, from my perspective, is very clearly around what the exercise of aboriginal and treaty rights would mean for individual first nations, as there are different cultures and traditions in how rights are exercised, so the exact “how” is what is not included in the provision.

     Thank you for that.

     Would it help to add an amendment to the definition section about potentially what that could mean so that the framework for that “how” is given?

    It could potentially help.

     The one piece I would also mention is the non-derogation clause to help ensure that any amendment or potential proposed amendment around a definition would not abrogate or derogate from existing and recognized aboriginal and treaty rights. The one potential risk could be that as things are prescribed in federal law, it's minimizing those rights. That would be the one consideration to reflect on.

    Okay. Thank you.

    Thank you very much, Ms. Idlout.

    Next on the list I have Mr. Schmale.

    Thank you very much, Chair.

    Again, the topic that I keep harping on is the protection zone under this amendment.

     Continue to scroll down to Kawartha Conservation. This is not anything negative against them. Lots of good friends work there—close friends, in fact—but the reason I keep bringing this up is to reinforce the point I'm trying to make. Under Kawartha Conservation's questions and answers, we see, “What is source water protection?” The answer is:

     That's it. There's no real definition. This is even on just the provincial and local levels. They have a source water protection plan, which is under the jurisdiction of the Clean Water Act in Ontario and allows this plan to be updated annually at the local level through Kawartha Conservation and their partners. It's similar.

     First of all, this plan regulates the application of road salt, the storage of snow and the application of agricultural source material, and the list goes on. There are 22 items on the list that can be updated annually, not by elected lawmakers but by the departments involved, Kawartha Conservation and the bureaucracy itself.

    We are implementing policies with the force of law—whether through fines or, in the worst case, prison, potentially, depending on how severe this is—and they are imposed, so to speak, at the federal level. We are not defining this, but this legislation provides the minister, among others, with the power to continue to update this list. We, as elected officials, get to sit back and say, “Well, gee, it's the department. What are we going to do?” Meanwhile, people on the ground are impacted.

    Again, we all want clean water for everybody. I think that's the goal, but not defining things is potentially going to lead in a direction that potentially will have unintended consequences, so I really think....

    Again, I plead with this committee: Let's get that definition done. Perhaps organizations like local conservation authorities might be able to use it, because right now even they are having an issue defining this, which gives broad power.

     When we're trying to ensure certainty for industry, while we're trying to ensure certainty in this legislation and the ability to provide clean drinking water, if there's no definition, we have no idea of what we're talking about. This is all big thinking here. Please, before this gets done, I'm begging this committee: Let's define some of these things.

     Thank you, Mr. Schmale.

     Mr. Battiste is next.

     I think there have been discussions, Mr. Chair, and I think we'd like to park this one. It's one of those areas where we've already recognized that there are aboriginal and treaty rights under “Purpose” in subclause 4(c), but how this can be read together with this one is something that we're hearing now is out of the scope. We need a little bit more discussion on how we recognize constitutional rights, where this fits outside of the scope and some further clarification on that. I think we can park this one and keep moving to the next clause while we get that clarification.

     Thank you, Mr. Battiste. I understand that you're moving to let this clause stand, which is a new clause added after clause 14, so it would be new clause 14.1.

    This is debatable. Are there any members who would like to weigh in on that?

    To be clear, the proposal from Mr. Battiste is to let this proposed clause stand. We would return to it after we've gone through the legislation, including the definitions clause, which we stood earlier in our review.

    Go ahead, Ms. Idlout.

     I am in agreement to stand this discussion, but I also want to highlight another bullet point to add with this proposal that maybe everybody is forgetting.

    Starting in the third line, there is a very clear limitation that says that this would only be for the first nation, so it would be “under the jurisdiction of that First Nation”. It's not a broad, vague identification. It's saying that this would be for standards on “The quality of water and source water available on the First Nation lands of a First Nation and in a protection zone under the jurisdiction of that First Nation”.

    Regardless of that first nation, if it has “Aboriginal and treaty rights”, the following part of this amendment helps to clarify that exercising either of those would be under the jurisdiction only of that first nation.

    To help clarify and make sure that members understand, we're not asking for a broad exercise or a broad discussion of what these rights are; it's to make sure that first nations that have jurisdiction are able to “at least meet the First Nation's needs for the purpose of exercising its Aboriginal and treaty rights, among other purposes.”

     I just needed to clarify that for you all so that you can see that it's focusing on first nations that have that specific jurisdiction.

     Qujannamiik.

    Thank you very much, Ms. Idlout, for that clarification.

    I don't see any others who would like to weigh in on the debate, so maybe we can move to a vote on this.

    An hon. member: We can stand it.

    The Chair: We'll stand it until the end, so we're going to vote on that.

    Is there agreement among the committee to stand this amendment and return to it after we get to the definitions clause?

    Some hon. members: Agreed.

    (On clause 15)

    The Chair: NDP-24 will be stood, which takes us to clause 15. The next amendment we are coming up to is NDP-25. If NDP-25 is adopted, PV-2, NDP-26 and G-4 cannot be moved due to a line conflict.

    With that, I'll open the floor to a mover for NDP-25.

    Ms. Idlout, the floor is yours.

    Qujannamiik.

    I'm going to speak in English to save some time.

    NDP-25 was submitted to us by the Okanagan Indian Band. You can read their submission in the summary of the brief on page 10.

    This proposal is specifically related under standards to water quantity. They are proposing that:

    I see, though, that there's a difference between PV-2 and this NDP-25. In PV-2, they're talking about needs, whereas in NDP-25, we're talking about practices. I would like to get an explanation of the difference between NDP-25 and PV-2, and I don't know if I can do that without PV-2 having been moved.

    Qujannamiik.

     Thank you very much, Ms. Idlout.

    NDP-25 is moved.

    Ms. Idlout, just for your information, we can discuss the differences between those two and get feedback from officials to that effect as well.

    I'll turn it over to officials to speak to the differences between NDP-25 and PV-2.

    I appreciate the question.

    The key difference is, in essence, that NDP-25 is much broader in terms of multiple provisions being proposed, whereas PV-2 is a more concise provision of NDP-25. That's my perspective.

    Thank you very much, Ms. Idlout.

    On the speaking list, I have Mr. Zimmer, Mr. Battiste and then, joining us online, Mr. Morrice.

    Thank you, Chair.

    I guess we can get back to that. We discussed at length last night the “adjacent” term and the problematic word that it is because it attaches itself to every other location, whether it's in the province of B.C. or wherever. That would be a concern. We voted previously that it wouldn't cut it, and here it is again. I guess there are similar concerns about this term in this particular clause.

    Thanks.

    Thank you very much, Mr. Zimmer.

    Mr. Battiste, the floor is yours.

     I understand that what G-4 talks about is a bit broader and uses the exact language the AFN had asked us to use in looking at the cultural and spiritual needs. I think that covers all of the things that are covered within PV-2 and the NDP amendment, but it uses the broader language that was recommended by the AFN.

    I wonder if we could get the experts to give us their sense of whether G-4 covers what is intended, without looking at the adjacency part within the NDP amendment. I understand there are issues with this on the Conservative side.

    In terms of ensuring that the water meets the needs of first nations, taking into account their cultural and spiritual needs, is it the cleaner language that makes it broader?

     Thanks for the question.

    I would agree that G-4 is common across PV-2 and NDP-25 in the language on cultural and spiritual needs, so it addresses that. I would say there is a scale-up on economic development and aboriginal rights found in some of the other provisions, but the commonality across the three is found in the cultural and spiritual needs language.

    Thanks.

     Thank you, Mr. Battiste.

    Next we'll move online to Mr. Morrice.

     Thank you, Chair.

    I want to clarify that this clause talks about the quantity of water that must be made available. As I've shared before, all of the amendments that I brought forward come directly from Six Nations of the Grand River.

    In this case, PV-2 is seeking to add economic and cultural needs to the needs required in this section. I see that in NDP-25. Should the committee support NDP-25, there's a specific mention of both economic well-being and cultural practices. Of course, that's in PV-2. If the committee pursues NDP-26, which has economic but not cultural considerations, I would suggest that the committee could simply subamend NDP-26 to add the cultural aspect, should you choose not to go with PV-2.

    When it comes to G-4, however, there is no mention of economic needs, so if the committee pursues G-4, I would encourage a colleague to consider subamending G-4 to add, "taking into account its cultural, economic and spiritual needs". Should the committee do that, they would be meeting the request of the Six Nations of the Grand River to ensure that both economic and cultural needs are included in clause 15.

    Thank you.

     Thank you, Mr. Morrice.

    Next we have Mr. Melillo,

then Mr. Lemire,

and after that, we have Ms. Idlout.

    Thank you again, Mr. Chair.

    I'll start by saying that I agree with much of what Mr. Battiste said. I think G-4 looks succinct and fairly straightforward.

    I'll build off Mr. Morrice's point about economic well-being. I really appreciate the sentiment. I would have a similar concern, as I've previously raised a few times here, in terms of what that would mean and how that would be determined.

    I'd ask our officials here if there's any insight into how the quantity of water for economic well-being could be determined.

     In my mind, it would be very difficult to assess the economic needs associated with clean and safe drinking water, particularly for a bill that's aimed at providing clean, safe drinking water and waste water. I personally would struggle with understanding the impact from an economic lens.

     Would you say that including the economic aspect is perhaps beyond the scope of this bill?

     I think you could make that case.

     Okay.

     I have one more question, Mr. Chair.

    Mr. Zimmer raised a very interesting point about adjacency. Of course, we talked about that at length yesterday. We removed adjacency pertaining to protection zones from this bill. If NDP-25 were to be adopted, it brings adjacency back to the table, creating an inconsistency.

    Would that present any challenges in terms of harmonizing the bill? Would it become inconsistent or difficult to work with from that angle, having adjacency in this section but removed from the previous section?

     As in all pieces of legislation, it would be good to have analogous language throughout the bill. I would say, given the decision from yesterday, that reinserting adjacency could create confusion.

    Thank you.

     I think that's all.

    Thank you, Mr. Melillo.

    Go ahead, Mr. Lemire.

    Thank you, Mr. Chair.

    The points I wanted to talk about are essentially the same as those raised by the Green Party. I think the economic and cultural aspects are important, despite the points that were just raised.

    Therefore, the Bloc Québécois would prefer to support amendment PV‑2.

    The idea of a proposal to amend amendment G‑4 to include economic needs could also be a solution that would get us on side.

    Thank you very much, Mr. Lemire.

     Next I have Ms. Idlout.

     Thank you so much.

    First of all, I must express my observation that when the Liberals work together with the Conservatives, it's at a time when indigenous rights are being questioned.

    I do, however, agree with regard to proposed subclause 15(1) that because it was submitted at a time before we had discussed adjacency and because these discussions are not static, my proposed subclause 15(1) amendment is not the greatest.

    I do want to ask the experts about proposed subclauses 15(2) and 15(3).

    Are there other places in the bill where proposed subclauses 15(2) and 15(3) can still be recognized, so as to ensure that the minister must take into account a first nation's current and projected water usage needs in respect of the framework under clause 27?

    I appreciate the question. I'm just double-checking my memory in real time.

    In essence, the way the framework on funding is drafted is that “the following matters” would be included, but that doesn't necessarily mean that the items in this list are the only matters. Consultation and collaboration with first nations to develop that framework would look at the broader requirements and obligations around the bill.

    From my perspective, all the standard provisions would play a part in that to ensure best efforts for adequate and sustainable funding for all first nations.

     As a supplementary question, because the proposed subclause 15(2), for example, is asking the minister to take into account current and projected water usage needs, if NDP-25 does not pass, are there other places that specifically talk to projected water usage needs, or are they still going to be covered because of the framework discussions that will need to happen under clause 27?

    Both would be accurate.

    The existing clause 15 does talk about current and projected needs for first nations. As long as that section would pass, it would be included, as well as within the funding framework.

    Thank you, Ms. Idlout.

     Mr. Battiste is next.

    I think that taking partisan shots is not helpful for the overall goal of this legislation and ensuring that all parties in this government support it. We're probably going to need unanimous consent to get this to the Senate. If all parties aren't in agreement with this legislation, then it's going to impact first nations communities.

    I live in a first nations community. My overall goal is to ensure that we find legislation that all parties can agree with. To say that we're not in support of aboriginal and treaty rights, when they're in the purpose, to say we're not in agreement with UNDRIP, when it's in the purpose, or to say that we don't agree with the human right when it's already been voted on by this committee in a historic fashion is just inaccurate.

    In terms of this specific clause, we do support the cultural and spiritual needs as applied in G-4, but when we start talking about economic needs, what if, instead of first nations just having clean drinking water, they want to do fracking with that water? What if they want to open up a bottling agency for bottled water? Are we going to put their cultural and spiritual needs on the back shelf for the economic needs?

    What we're trying to protect is the cultural and spiritual part. It's what we talked to AFN about. It's what they recommended, and that's what we're going to go with.

    Thank you very much, Mr. Battiste.

    Not seeing any other hands up, let's move to a vote.

    Shall NDP-25 carry?

    (Amendment negatived: nays 11; yeas 0)

    The Chair: NDP-25 is defeated, which takes us to PV-2.

     Mr. Chair, you might want to look at the clock. I think we're close to the wire.

    We're going to wrap in the next five to 10 minutes, maximum. Maybe we can dispose of this before then, but I'm very aware of the tributes that we want to get to for Mr. Sinclair.

    PV-2 is automatically deemed moved. I just note for members that if it is adopted, NDP-26 and G-4 cannot be moved due to a line conflict, although NDP-26 has been withdrawn.

    I give the floor to Mr. Morrice.

     Thanks again, Chair.

    Again, the interest of PV-2 is bringing forward the call, from Six Nations of the Grand River specifically, to add “economic and cultural needs” to the water quantity available that this bill would prescribe.

    It looks like you just ruled that this PV-2 was admissible. I heard comments from Mr. Melillo and Mr. Barbosa earlier that “economic needs“ would be out of the scope of the bill. My understanding is that when an amendment is ruled admissible, it expressly means that it is within scope. If the committee chooses to support PV-2, it would be supporting putting the “economic and cultural needs” of the first nation into this legislation.

    Should the committee not support PV-2 but go for NDP-26, the committee could just subamend NDP-26 and add “cultural”. For those who would prefer to go with G-4, again, the committee could just add “economic”, and would only be increasing the needs of first nations when it comes to clean drinking water.

    I live in a community where no one questions the economic need for water or the uses of water for economic needs, and I think that's the interest of Six Nations of the Grand River and, I imagine, other first nations across the country who would want to see a larger scope of their water needs considered by this legislation.

    Thanks.

     Thank you very much, Mr. Morrice.

    Is there any debate?

    Go ahead, Ms. Atwin.

     Thank you very much.

    I appreciate where Mr. Morrice is coming from. We certainly heard from witnesses about how not having access to clean drinking water has impacted their economic activities. Think about how, if you're operating a café, for example, if you don't have clean drinking water, you can't provide the services that you require for your clients.

    However, “economic”, just in and of itself, is such a broad term that it could mean anything and everything, including, as Mr. Battiste mentioned, the potential for an aquifer of fresh water to be drained for maybe a fracking operation, for example, or for a bottled water company to be established. It would then infringe upon the potential for those cultural and ceremonial needs, for example, to be met. It's the broadness of the term “economic”, and I don't think we have enshrined those economic needs in law anywhere else. For example, Kingston would be protected through law.

    It's just that distinction that we want to support the economic needs of individuals in first nation communities. It absolutely is related to access to clean drinking water, but including that provision in Bill C-61 is so broad that I actually think it threatens the other pieces we're meaning to protect, the cultural part.

    Thank you very much, Ms. Atwin.

    Next I have Ms. Idlout and then Mr. Morrice.

     Thank you.

    There is a concern that when it comes to water quantity, first nations' economic needs are not included. When I think about water quantity available to every other society in Canada, they have the freedom to choose whether they use it for emergency management or for economic and cultural needs.

    I'm going to support PV-4. I don't know whether we're going to need to park it as well, because I do want to see “spiritual needs” added to PV-4. I'm willing, between now and our next session, to make a written submission to amend PV-2 by adding “spiritual needs”. Given that I did withdraw NDP-26, I'm willing to make a subamendment to add “spiritual needs” as a way to strengthen PV-2.

    Qujannamiik .

     Thank you, Ms. Idlout.

    We'll go to Mr. Morrice. We'll likely have to wrap up after that.

     Thanks, Chair.

     I think that would be a wonderful subamendment that Ms. Idlout just mentioned, which would be to add “spiritual needs” to PV-2.

    To the concerns raised by my government colleagues, Mr. Battiste and Mrs. Atwin, with respect to adding “economic”, I would offer that should there be concerns about fracking, there could be other legislation that would ban fracking, for example.

    However, this isn't the place to be prescribing economic activity. This is the place to ensure that the legislation that's designed to support water in first nations communities is provided. Should there be certain economic activities that we don't support, we would support other legislation to address that.

    Thank you.

    Thank you, Mr. Morrice.

     Before we wrap, Mr. Melillo wanted to weigh in as well.

    Really quickly, because I know we're up against time, I want to clarify something. Did Ms. Idlout move that subamendment, or was she just speaking about moving that subamendment?

    We can return with that copy, if necessary, at the next meeting. I just want to confirm if we were on that subamendment or if it was just an idea being presented.

     I don't want to speak for Ms. Idlout.

    Ms. Idlout, could you clarify?

     I am putting in my notice that I will submit a subamendment to add “spiritual needs” at our next session.

    Thank you, Mr. Melillo, and thank you, Ms. Idlout. That's something to look forward to when we reconvene.

     Our next scheduled meeting is on Monday, November 18, at 3:30.

    Do I have the will of the committee to adjourn?

    Some hon. members: Agreed.

    The Chair: The meeting is adjourned.