INAN Committee Meeting

     I'm going to call this meeting to order.

    Welcome to meeting number 133 of the House of Commons Standing Committee on Indigenous and Northern Affairs.

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

    I also want to do a special welcome today. We have a delegation of students from Nunavut Sivuniksavut visiting. Welcome.

    Some hon. members: Hear, hear!

    The Chair: We also have a number of members joining the committee today.

    Mr. Steinley and Mr. Vidal, thanks for filling in today.

    In the spirit of being efficient, there are a couple of things I want to mention pursuant to the motion that we passed last Thursday.

    I am going to need to pause briefly at routine proceedings so I can table that report in the House virtually. I will pause briefly when we get to that.

    I also want to mention this: Thank you to the member who noticed that tomorrow's meeting was due to be in audio only. That's since been rectified. Tomorrow, the meeting, which will be a very long one, will be televised from 10 a.m. to 10 p.m., or whenever we will finish.

    With that, pursuant to the order of reference of Wednesday, June 5, 2024, the committee will resume consideration of Bill C-61, an act respecting water, source water, drinking water, waste water and related infrastructure on first nations lands.

    To help us with clause-by-clause consideration of Bill C-61, I would now like to re-welcome our witnesses here today. We have Nelson Barbosa, director general, community infrastructure branch, from the Department of Indigenous Services, and Rebecca Blake, acting director, legislation, engagement and regulations. We also have Douglas Fairbairn, senior counsel from the Department of Justice.

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

    (On clause 22)

    The Chair: With that, we can resume clause-by-clause consideration. We were at CPC-6, which is in clause 22.

    Just so you know, I will have to rudely interrupt at some point to pause. Until we get to that point, I will open it up to the Conservative Party to discuss CPC-6, should they be willing to move that.

    Mr. Vidal, I'll turn the floor over to you.

    Thank you, Chair.

    My understanding is that, because I'm subbing for Mr. Melillo today, it's my responsibility and privilege to move his potential amendment. On his behalf, I would like to move CPC-6, that Bill C-61, in clause 22, be amended by replacing line 24 on page 13 with the following:

    Chair, you're right. I am a visitor today, but I have some history on this committee as most people are aware. I have just a couple of comments in support of this amendment on behalf of Mr. Melillo. Basically, this amendment would ensure that these regulations and whatnot are truly co-developed. There have been a number of other amendments earlier in the process on a number of other sections of the bill with similar amendments made, and I think they have been supported for the most part. We're going to ask that the committee members support this amendment to ensure that we really do get legislation and regulations that are truly co-developed.

    I don't know whether I'd call myself a newcomer or an oldcomer coming back to the committee, but it's interesting to me that in preparing for this there's been a lot of language around co-development and how this bill was co-developed with nations across the country, with organizations representing nations across the country. However, when I look at this, there are 130-plus amendments being proposed. A number of them have actually come from individual nations, from regional organizations representing nations, even from the AFN.

    I guess my challenge would be in the drafting of this legislation. If it was truly co-developed, why do we have 100-plus amendments being brought forward and a number of them by individual nations and by organizations representing regional organizations, or the national organization, the AFN? I think it stands to reason that we support the idea of adding language to make this truly co-developed, to make sure that the individual nations that are impacted by this legislation have a say in the process and in the regulations that impact them. I think that's the purpose of this amendment as I see it.

    I will leave it at that, but I just ask for member support in making this legislation truly co-developed.

     Thank you very much, Mr. Vidal. It's great to be on this committee with you again. I know we were both members of this committee a couple of years ago. Welcome back.

    With that, I'll open it up to debate on this motion. I see Mr. Battiste has his hand up first.

    When reading the actual portion of this and talking about the minister's enforcement, it says, “If requested to do so by a First Nation governing body, the Minister may”. When we're looking at adding an additional layer of bureaucracy and saying that it must be co-developed, to me it seems like this only goes forward if the first nations governing body actually asks the minister to do so in regulations. It requires the consent and approval of and actual action by the first nation to action this portion of the legislation.

    I'm afraid I will have to suspend very briefly.

    It was a false alarm. I'm calling the meeting back to order. You have my apologies for that.

    I'm actually going to have to suspend in about five minutes. Something unusual was presented here.

    Mr. Battiste, I'll turn it back over to you.

    To the youth in the room, you see, even when you grow up and become elected, they'll still cut you off when they want you at the front of the class.

    I think where I was going was that it seems that the only way that this clause gets actioned is if the first nations governing body is requesting it. To me, that actually is a higher threshold above the idea of co-developing, because it requires a first nations governing body to take some action to request that the minister do that.

    Is that a somewhat accurate reading of how this particular clause of the legislation comes about? Do we need the extra layer of bureaucracy to co-develop something that's actually being asked for by the first nation itself?

     Thanks for the question. It's good to be back.

    Yes, I think that would be an accurate interpretation. In order to be expeditious, we've covered many of these concepts before, so I'll just go over them briefly. I think in previous meetings in the past we talked about a better alignment with the words “consultation and cooperation” found in UNDRIP, and a bit on the ambiguity on what the litmus test for understanding what co-development means, particularly in a legislative context. Those have been two periods of caution on which we've had conversations over the last couple of weeks.

    Also, in terms of this amendment, it says it “must be co-developed with that body.” If you just read the text, it says, “First Nation governing body of the First Nation”, which I assume means the first nation, but then it also says, “and with the government of the province or territory”. I think maybe this sounds like co-developing with that body, meaning the first nation, but it does say “and”. There could be interpretation of co-development with provinces and territories, which we talked about at length at the close of our last meeting.

    I would concur about the cascade of consistency of terms—“consultation and cooperation”—adherence to UNDRIP, previous conversations we've had with provinces and territories, and, in my mind, reading this text as an official, some ambiguity on what that body means in reference to a full phrase.

    Thanks.

     In following up, there are some communities out there that don't have the capacity to work on co-development. If I'm a first nations community that has asked the minister to take on something around protection zones in this enforcement criteria, for some communities that don't have the capacity to work with federal officials on co-developing something, instead of just asking the minister to do something in a BCR, could this extra portion about co-development add delays to communities without the capacity to negotiate or co-develop something around protection zones?

     Thanks for the question.

    I think it could. Ambiguity aside, again that is a significant bar and a potential significant hurdle with a lack of clear definitions. It certainly could contribute to lack of implementation or delays.

     For those reasons, I think our government must vote no to that.

     Thank you very much, Mr. Battiste.

     Next I have Mr. Vidal, then Mr. Shields and then Ms. Idlout.

    Just so you are aware, I'm going to interrupt, probably, in the next two minutes or so.

    Mr. Vidal, go ahead.

     Thank you, Mr. Chair. I'll try to be quick and be done so you have a nice break in your two-minute gap here.

    I would respond that this particular clause in the legislation is entitled “Consultation”. The language of the clause is:

     Our amendment adds onto this that “such regulations must be co-developed with that body”.

    Without being too blunt, in my experience, the minister's and this government's response to consultation and co-operation has not been, I would say, stellar. Rather than using my opinion of that, let me read you a couple of quotes. One is from the Chief of Onion Lake Cree Nation, which is literally a couple of hundred kilometres from where I live. He says—

    I'm sorry, Mr. Vidal—

    You're going to do it. I'm sorry. I wasn't fast enough.

    I'm going to have to briefly suspend here.

    We're back in business.

    I apologize for that, Mr. Vidal. As you can see, it's definitely business related to the work of this committee. I'll turn the floor back over to you, where you left off.

     I was about to quote a couple of people who speak to this need for true co-development and, maybe, the lack of actual consultation and co-operation. We're just trying to ensure that happens.

    Chief Henry Lewis from Onion Lake Cree Nation was at committee on October 3—just recently—and he said:

    I'm not going to read all these other quotes, but Grand Chief Alvin Fiddler wrote:

    In September, Chief Billy-Joe Tuccaro from Mikisew Cree First Nation said, “there has been absolutely no consultation in regard to this bill that's being rammed down our throats.”

    My point in reading these quotes is that this is not my opinion as to the lack of consultation and co-operation. The reason we're trying to add some language and substance to this part of the legislation is that we ensure the parties affected by the legislation are, in fact, included in the creation of regulations in the legislation. That is my push-back as to why I believe this amendment is extremely important.

     Thank you very much, Mr. Vidal.

     Next I have Mr. Shields, then Ms. Idlout and then Ms. Atwin.

     Thank you, Mr. Chair.

    I appreciate the comments you're making about concerns over adding layers. I mean, the legislation could have been simplified and we could have been working at drinking water much quicker, but it's much more complicated.

     When we get more complicated, there's the comment that maybe some nations don't have the ability to work through the process of the regulations, but in my mind, if you don't make that attempt at the regulations.... I've been around a long time. I've seen legislation provincially and federally—a lot—but we all know what it comes down to is the regulations. The regulations are the pieces that implement. That's a critical piece.

    If we're going to have this piece of legislation with some other parts in it, I think the regulations are a critical piece. At least you need to be able to say to each nation...to give them the opportunity to say yea or nay to wanting into that, or if there's a way that they can do it through different associations to say, “This is a template that others have used. Would you like to be in on this conversation?”

    You may not have developed them yourself. That happens a lot in sharing when people work on regulations. I've seen it a lot of times where smaller communities just don't have those resources, but they depend on their associations or they work with their neighbours to develop that skill set to work with in response to regulations.

    In my mind, if the legislation is built with the layers that are in it, we don't want people at the end of it—a nation—to say, “I didn't get a chance to have my say. I didn't get a chance to react to those regulations.” This is a once-in-a-lifetime piece of legislation, and that, to me, says it's important that everyone has their say. I think there are ways to support all nations in different mechanisms so that they feel they've had their input.

     I understand your thoughts on creating another layer and all the bureaucracy that may go with it, but I think we have a lot of nations in this country that are really looking at this as something that's going to make a change in their nations, and the regulations are how it's implemented.

     Thank you very much, Mr. Shields.

    We'll go to Ms. Idlout.

     Unnukkut. Thank you.

     I am particularly missing the interpreter I normally have, because it would have been lovely to speak in Inuktitut with the Nunavut Sivuniksavut students here, whom I welcome as well. It's so good to see them here.

    Regarding CPC-6, I do support it and wanted to echo as well what our colleague Gary was saying about the lack of true co-development, as we've heard from first nations. I recall as well that when we had department officials appearing before us as witnesses, I asked them how many of the first nations in Canada would be impacted by this legislation, and their answer was that about 570 to 580 first nations would be impacted by this bill.

    I then asked them, of those up to 580 or so, how many were engaged in this so-called co-developed process. Their answer was only a hundred and something, and when my staff at the time did the math, that resulted in only 30% of the first nations who will be impacted by this bill having been engaged in this so-called co-developed bill.

    I absolutely agree with the Conservatives and with this amendment including the co-development at this stage, where first nations are afforded the opportunity to truly be engaged in decision-making surrounding water and surrounding their jurisdiction and whatever the regulations might be, given that up to this point they haven't been engaged enough.

     Even if we hear that this has been co-developed, the feedback we heard from first nations was that there were too many left out of the process. Indeed, earlier this afternoon, I met a chief of a first nation who hadn't even heard of Bill C-61. I think that if there is a first nation in Canada that has not even heard of Bill C-61, there is a major failure in terms of not including first nations to this point. As such, I'll be supporting this amendment.

    Qujannamiik.

     Thank you very much, Ms. Idlout.

     We'll be moving to Mrs. Atwin next.

     Thank you very much, Mr. Chair.

    We've gone down this road many times.

     First, I'd like to know where specifically that amendment came from, to be honest. I understand what we're trying to achieve, and I think we all want to achieve that. I'm wondering about the specific amendment proposed—where it's specifically found in the bill and if it is going to achieve the outcome that you think it's going to achieve. We're hearing from our legal team. We're hearing from those who are experts in this that it could actually slow down what we're trying to achieve. That's my concern.

     I would also like to highlight that I wish it were truly a co-developed bill. We know that it was as close to co-developed as we've ever seen with legislation in Canada, so that, I think, needs to be clarified as well.

     I'd love to get there, and we need to get there. Again, I would love to see what the best-case scenario is and what the worst-case scenario is in terms of how this amendment would impact the overall bill.

    Thanks for the question.

     The best-case scenario is the objectives that you're all speaking to, which are regulatory standards and a policy regime that is led and shepherded by first nations, with Canada as a partner at the table, and where there's an acknowledgement and affirmation of rights and law-making in that space, where first nation laws are put at the forefront on protecting their waters and where there's a provincial and territorial space where they can protect waters together.

     I think the opposite side of that coin is what some others are highlighting, which is ambiguity of the term, a highly unclear definition of what co-development means, a stagnation in progress, a lack of alignment between provinces and territories, and a pushing of people away from co-operation and into a more adversarial or legal context.

    This is, I guess, the thread of the legislation and the needle that it tries to weave with.

     Unpacking that further, again, we've addressed a similar thing with similar amendments.

    I do wish that the co-development piece was there for first nation governing bodies, but entering into the conversation with the provinces and territories again is further complicating this. That would be a concern, as you mentioned—that it's not clear.

     The other piece is that we're under clause 22, so it's all about “If requested to do so by a First Nation governing body”, yada yada yada. It's already implied that they're going to be the ones requesting that. They're the ones at the table who are stewarding this process, so I do see it as an additional layer.

     Again, we did work with many partners to put this together. I'm wondering specifically where that amendment from our Conservative colleagues came from. I am just curious, because I think it's important to the conversation.

     Those are my thoughts for now. Thank you.

     Thank you very much, Mrs. Atwin.

     We'll go to Mr. Shields.

    I think you made my case when you said that it's “implied”. If it's implied.... I want to make sure it's there, not implied.

     I don't want any ambiguity—no ambiguity and not just implied but actually very clear. That's what we've been asked for from first nations: Make it clear—no ambiguity. They've stated that.

     Thank you very much, Mr. Shields.

     I'll now give the floor to Mr. Lemire.

    Thank you, Mr. Chair. I just want to say that we'll be supporting the principle of collaboration and consultation.

     Thank you, Mr. Lemire.

    We can now proceed to the vote.

    (Amendment agreed to on division)

    The Chair: CPC-6 is carried on division, which will take us to CPC-7.

    I'll open up the floor.

    Mr. Vidal, the floor is yours.

    Thank you, Mr. Chair.

    Again, on behalf of Mr. Melillo, I have the privilege of moving amendment CPC-7. The language of that amendment is that Bill C-61, in clause 22, be amended by adding, after line 24 on page 13, the following:

     My comments on this are probably pretty simple, Mr. Chair.

     I understand that there's been a fair amount of conversation around consent at this table over the last few meetings. I think we've heard the arguments many times, and I think this is just another step on that journey of ensuring the nations actually consent to the regulations being made that impact their nations or the water that impacts their nations.

     I think I'll just leave it at that. I believe this just adds some assurance that the consent happens.

     Thank you so much, Mr. Vidal.

     CPC-7 has been moved. I'll open it up to debate. Is there anybody who would like to intervene at this time?

    Mrs. Atwin.

     Again, we've had this conversation multiple times around the same pieces, so I don't want to reiterate in the interest of time. I think that we're going to probably land at the same place.

    Thank you very much, Mrs. Atwin. Not seeing any further hands....

    I'm sorry, Ms. Idlout. Did you have your hand up? I'll turn the floor over to you.

     I'm wondering what effect adding a subamendment would have if we added “provides free, prior and informed consent” after “governing body”, and whether the Conservatives would be amenable to that subamendment.

    Thank you very much, Ms. Idlout. I know that this hasn't been officially moved as a subamendment, but I'll just remind all members that any subamendments do need to be submitted in writing as well.

    Before that, I'd be happy to open it up if there are any other comments on Ms. Idlout's suggestion.

     Mr. Vidal.

     I would just comment that on our side we'd be happy to look at it in writing and potentially support it.

    Thank you very much, Mr. Vidal.

    In that case, I will just mention to Ms. Idlout, should you wish to move that subamendment, please say so, and then could you prepare something in writing to circulate to the committee? Maybe we'll briefly suspend for that subamendment to be circulated.

     We'll send an email right now.

    Great. Thank you so much. With that, we are going to briefly suspend.

     Colleagues, I call the meeting back to order.

    We left off on the subamendment to CPC-7 that the NDP is moving. That amendment has been submitted in writing and translated and has been circulated. All members should have that at their disposal at this point.

    I'll turn the floor back over to Ms. Idlout, should she wish to speak any further on this topic.

     Qujannamiik.

     Just to make sure that it's clearly reflected in the blues, the subamendment I've provided to CPC-7 is to remove the words “of the” after “governing body” and replace them with “provides free, prior and informed consent to it”.

    I think it's pretty clear what the intent of this subamendment is.

    Qujannamiik for the time to get it admissible.

    Thank you very much, Ms. Idlout.

    We're going to move to debate on the subamendment.

    First, I see Mr. Battiste.

    I'll turn the floor over to you.

     I'm wondering how something comes into free, prior and informed consent. How do we demonstrate that?

     If I'm a first nations community or the Atlantic First Nations Water Authority, can you tell me the steps that a first nation community would now have to go through to ensure that this, in practicality, works? How do they do that?

     Thanks, Mr. Battiste.

    Go ahead, Ms. Idlout.

     It's already in the Constitution. They have to.

     When we're debating bills such as these, I think it's important to remember the intent of our debate and the intent of this bill. As we've discussed, in this bill we've been trying to ensure that, as introduced, Bill C-61 hands over jurisdiction over decision-making regarding water. Then, having had Bill C-15 become law in Canada, this would help strengthen the ability of first nations to ensure they are exercising their inherent rights, as well as what we've passed in Parliament under Bill C-15 for UNDRIP: “free, prior and informed consent”.

    The way that I could see it implemented is that there would be consultation. There is a right to participate, especially because it includes the right to their lands, territories and resources. Ensuring this declaration for free, prior and informed consent would make sure that first nations are engaged fully, as has been discussed. Up to this time, we've heard, for example, that only 31% of first nations were consulted in this so-called co-developed bill.

     I mentioned earlier that I met a chief of a first nation this afternoon who has never even heard of Bill C-61, so these concepts of ensuring consent—concepts of ensuring free, prior and informed consent—will help to make sure that first nations can be engaged in the way that they need to be, especially with Canada's colonial and genocidal policies continuing to impact the work that first nations try to do. This would be a real recognition and a real form of reconciliation: ensuring that first nations can give the free, prior and informed consent even at regulation stage.

    Qujannamiik.

     Thank you very much, Ms. Idlout.

    I'll turn the floor over to Mr. Battiste.

     Yes, we agree with the overall principle of free, prior and informed consent. I agree that all of the UNDRIP legislation and the principles within it should apply in the guiding principles.

     However, I'm asking you how a community.... There are more than 630 bands in Canada. How are we asking each of those to demonstrate free, prior and informed consent? What is the mechanism or thing they do to show it? It's not about whether we agree with the general principle. I agree with the general principle. I'm asking you how a first nations community shows free, prior and informed consent to satisfy this in the legislation. If we don't have an answer to that, we're going to add a layer of bureaucracy to this that makes it impossible for it to be implemented. I need a very specific instrument that a first nation can use to show free, prior and informed consent. We're in agreement with it, but I need to be clear on what a first nations community has to do to have this implemented in their community.

    Is it a ratification? Is it a band council resolution? Is it a referendum? Is it an agreement? Is it a memorandum of understanding? I need to know the exact instrument. Otherwise, what we're doing to a first nations community is giving them no way to implement this.

     Thank you very much, Mr. Battiste.

    I see that Mr. Vidal has his hand up. However, Ms. Idlout, if you'd like to weigh in on this point before that, I'd like to give you the opportunity.

     I want to weigh in.

    I know the governing party has been clear that Bill C-61 is something they don't want to see actual engagement on among first nations. When they introduced this bill, they touted it as the first fully co-developed legislation. We were quite excited to hear about it. Throughout the whole study of this, we had such a huge amount of interest in this bill. We had so many first nations telling us that the consultations were not sufficient. Indeed, when I asked the federal bureaucrats to explain to us how much engagement there was, we learned only 31% of first nations would be impacted among those that were engaged in this.

    When we're talking about adding free, prior and informed consent to this subamendment, we're talking about making Bill C-61 compliant with UNDRIP. Right now, as I've said before, Bill C-61 falls below UNDRIP standards. It's unacceptable that the Liberal government continues to introduce legislation, as it did in previous bills, that falls below UNDRIP standards.

    How that happens is up to the first nations. How that happens should be up to the first nations to decide. The Liberal government keeps saying they don't want to be too prescriptive. When we've suggested amendments, they've said, “Oh, it's going to be too prescriptive.” Now that we've submitted another subamendment, they're asking me to give them a prescriptive answer. I don't think we should tell first nations how they are going to share their free, prior and informed consent. For example, we've heard in the past that there's going to be an UNDRIP action plan. I know there are other instruments. The United Nations Office of the High Commissioner for Human Rights has provided documents.

    There are documents and instruments out there that will answer that question. It's not up to us to answer or prescribe that response.

    Qujannamiik.

    Thank you very much, Ms. Idlout.

    Next, we're going to Mr. Vidal.

     Thank you, Chair.

    I have a quick question and a quick comment.

     I guess my comment back to Mr. Battiste, and maybe to the officials, would be, obviously, that the concept of free, prior and informed consent is very much an integral part of Bill C-15, our UNDRIP legislation. One of the witnesses here at this committee in September, Dr. Littlechild, referenced UNDRIP in his testimony.

     My question for Mr. Fairbairn is in response to Mr. Battiste's question. In the context of the UNDRIP legislation, how do we acknowledge free, prior and informed consent? There has to be a definition there. It's legislation that has been passed. It's legislation we've adopted. How do we determine free, prior and informed consent, as it relates to UNDRIP, from a first nation, then? If the challenge is how we prescriptively define that, how do we do it for the UNDRIP legislation?

     There's no actual definition in the United Nations Declaration on the Rights of Indigenous Peoples Act on FPIC. Canada has an obligation to ensure its laws are in conformity with the United Nations Declaration on the Rights of Indigenous Peoples. There's also an obligation to develop an action plan, which was developed by the Department of Justice. It leaves the issue of FPIC to be decided at a future date.

    Thank you very much, Mr. Vidal.

    I see Mr. Battiste has his hand up. We'll go there next.

     I know, Gary, that you're subbing in. In previous discussions we had about how to show free, prior and informed consent when it was specific to a first nations band, we used the term “BCR” to demonstrate that. That's fine. There are others who will do things outside of a BCR.

    I feel that, when we're talking about legislation, it's great to have these principles up in the air. However, as someone who lives in a first nations community and who knows what mechanisms are available under the Indian Act and what's currently there, I need to find language that all 630 first nations bands are able to understand, so they don't have to prove things individually, as bands, and by varying degrees throughout this process.

    I was talking to my colleague Martin Shields. He said that, when he saw “consent”, he said “agreements”. At least, as someone who went to law school and who knows what contractual law is, I know what an agreement is. I know what a BCR is. What I do not know is what large-scale “free, prior and informed consent” mandate we're putting in this legislation, which might end up making its implementation impossible.

    I'll ask the officials this: Is not having these terms introduced within communities going to delay or jeopardize the actual implementation of first nations clean water regulations on reserve?

     Thanks for the question. I think my response would be similar to those about co-development.

    I agree about FPIC being entrenched in law in other places. The lack of definition and clarity could seriously impact how the bill is actualized and implemented.

    I'm not going to repeat myself, but, quickly, it sets a very high bar that is unclear, in my mind, on how that will be achieved. In the past, we have put, I would say, a quantifier or qualifier around what “consent” meant through a BCR, or it could be other actions. That would be a bit ambiguous in this context. I feel the ambiguity.... This section is about implementing something, and I wonder how it would be implemented.

    Thank you very much, Mr. Battiste.

    Next, we'll go to Mrs. Atwin.

    Thanks.

     It's very clear to me that what we require is legislation around FPIC. That would be very helpful in this circumstance. Then we could of course refer to it. It's very clear that we're missing a component we could address, I hope, at some point. However, right now, we're working on an act respecting water, source water, drinking water, waste water and related infrastructure on first nation lands, which is very specific.

    We also enshrine the human right to water, which I think is very important. It lends itself to this conversation. What does that look like in actuality? We've yet to see that. It's a very nice piece that has been added to the bill. I wish we had that guiding principle or another piece of legislation with that definition, but we don't. That's my fear.

    The task at hand is what we're looking at now. I want to go back to the consultation for the bill. I know you've gone over this many times, but it's a preoccupation for a lot of us. We have heard from individual voices across the country and in specific communities. At the top level, what does that look like? I also think it demonstrates some of the difficulties in what that definition should be. If we're posting something online, everyone can look at it. Is that consultation? Are we holding seminars or gatherings in communities? Is it sanctioned by all members of that community? Say you have 725 registered members and maybe some live in Hawaii, and some are....

    I'm wondering about the mechanics. Without a separate piece of legislation that sets all of that out, what we're doing right now puts this bill—the one we are tasked to get through in this committee—at risk.

    Could you talk about the consultation piece for me? Thanks.

     I'd be happy to.

     The department did submit a brief to the committee on the development process of this bill. I've had the pleasure of being at this committee several times and speaking about these actions, and I'm happy to briefly summarize them again.

     In short, the consultation process on this bill was unprecedented in the history of Indigenous Services Canada. It really began in 2018, with engagements with first nations, which AFN led and we supported. Those were accelerated in 2020 with the posting of two consultation drafts online for all Canadians to review, which was a first time that's ever been done in the history of this department.

     We sent—at least by my memory—three pieces of correspondence from the minister to every first nation to access and review the legislation. We opened up daily town halls in order for people to support engagement. We engaged directly with rights holders, based on their assemblies and based on their wishes, coming to their lands, from coast to coast.

    Also, because some previous comments were attributed to comments I made at this committee previously, I did state that there are 634 first nations and about 580 of them are bands. Approximately 130 first nations chose to engage in that process. It does not mean that this consultation outreach was limited to that, but the window of opportunity was there, and we tried to socialize that as best we could. Maybe we learned some lessons in that process of how we can do better. However, I can absolutely say that the efforts we undertook were new. We can continue to do better. It was a lengthy process.

     I would say, because the national chief was here as well, that AFN led a parallel engagement process, which was concurrent with and in addition to the aforementioned process that Indigenous Services Canada led with the minister. It was certainly comprehensive, and certainly there were a variety of views and interpretations of what consultation, co-development and consent meant.

    Thank you.

    Thank you very much, Mrs. Atwin.

    We're moving next to Mr. Vidal and then to Ms. Gazan after that.

     Thank you, Mr. Chair.

    As Mr. Battiste aptly pointed out, it's been a while since I've been at the table with all of you. There just seems to be a bit of irony for me that I was here at this table when we had the debate around UNDRIP. It's almost like we're making opposite sides of the argument here.

     Our concern back then was with looking for a clear definition of FPIC, and now the argument from the parliamentary secretaries is that we don't have that definition when it's included in the legislation, so maybe we need a definition of FPIC. However, it was two years ago. I think that was the argument we were making. We were totally supportive of the legislation, if we just understood what FPIC meant. Is that right? It seems kind of ironic now, when we try to include that in a specific piece of legislation, that it's a hindrance to the progress.

     Maybe I'll turn to the officials. What would you see as a way forward to getting a definition of FPIC that would apply to UNDRIP and would apply, then, when this is now inserted into other legislation? Maybe that's the impetus that is needed here to solve this impasse.

    It's kind of ironic that my Liberal friends are arguing exactly what I was arguing a couple of years ago in the context of needing clarity on this definition. Without that, we struggled because of the impact it might have on decisions down the road. Well, here we are.

     I'm sorry. That's all I have. Thank you.

     Thank you very much, Mr. Vidal.

     Next, we'll go to Ms. Gazan.

     I know we're all talking about a definition of FPIC. I have one from Justice, so I'm going to read it. It comes directly from the federal government's justice department.

    It says the following:

    I want to say this is coming directly from the justice department:

    We actually have a definition, currently. I'm reading it right off the Justice page. It continues:

    FPIC is not a veto. It's all laid out by the justice department. It has a very clear definition of FPIC.

    I want to add that we passed Bill C-15 in the last Parliament. Section 5 stipulates that all legislation, going forward, has to be compatible and consistent with the United Nations Declaration on the Rights of Indigenous Peoples. The reason this legislation is taking so long is that the Liberal government has failed to do that. Now we are in a situation where only 30% of first nations have been consulted, meaning you have not met the FPIC standards outlined by your justice department, which the federal government must adhere to. Now we're here. We have the definition. I'm not sure what the issue is in terms of incorporating FPIC, when the justice department has defined it.

    The other thing I'd like to point to is the UN expert instrument that clearly outlines UNDRIP. We are obliged to uphold international law.

    I can read it:

    It goes on. It has a very clear definition, and it's consistent with the definition outlined by the federal justice department.

    I'm sharing this because, even with the child care legislation, the Liberals pushed very hard not to include free, prior and informed consent on matters impacting our children. There seems to be a pattern of behaviour when it comes to the United Nations Declaration on the Rights of Indigenous Peoples, the very core of which is free, prior and informed consent and self-determination. The Liberals continually disrespect this. Now, I managed to work with the Conservatives on the child care legislation, and we got FPIC passed in that.

    Using the excuse that we don't know what FPIC is is not accurate or honest. We have a definition at the federal justice department. It goes on. We can read it.

    Thank you.

     Thank you very much, Ms. Gazan.

    Next, we're going to Mr. Battiste.

     Once again, I'll ask the NDP.

    I understand all of that about FPIC. I'm in favour of it. I'm in favour of UNDRIP. My father was one of the original drafters of the United Nations Declaration on the Rights of Indigenous Peoples. I'm asking you this: How does a first nations community demonstrate that, in reality?

    I need the answer. What are you making a community do? There are 630 out there. I live on a reserve. Please tell me the instrument you're telling the community to do that with. What's the instrument a community uses to demonstrate that? In plain talk, what does your band have to do?

    Thank you very much, Mr. Battiste.

    Am I supposed to answer?

     I'm not going to put you on the spot. If you'd like to, I'm happy to pass the floor to you.

     If you don't know, you don't know.

    Oh, I do know.

    Well then...?

    Ms. Gazan, if you'd like, I'll pass the floor to you.

     I mean, I appreciate the insistence to fight. I mean, it's bizarre—

     It's not a fight. Do you have an answer or not? You don't—

     Can you speak through the chair, please? Thank you.

    No answer....

     I understand his insistence certainly towards me. It is bizarre that a first nations person is trying to water down his rights.

     In saying that, the justice department has been very clear. I'll read the definition into the record again. We have a definition. I can read the whole definition from the federal justice department:

    There are three things that you must have for free, prior and informed consent. One is “free from manipulation”. This is certainly not what has occurred in the water legislation. When we meet a chief today who hasn't even heard about the legislation, who is getting second-hand information about what its intent is and where it's at in terms of meeting UNDRIP standards, that is manipulation or coercion. It's “We need to pass this bill really fast or it's not going to happen. We need to push this bill through even if it doesn't meet UNDRIP standards.” It's threatening, and that would be coercion. That would be threats.

    Also, it must be “informed by adequate and timely information”. Informed is knowing what you're actually agreeing to. The chief we met today didn't even know about the bill.

    There's also “prior”. That has not happened with the bill. That's why it's so important that we have free, prior and informed consent in this bill. It's because first nations people need to have protection from this kind of behaviour.

     Even with this water bill, where first nations are being placed in a position to accept a bill that doesn't meet UNDRIP standards or we have to worry about clean drinking water, that very behaviour in itself is why we need free, prior and informed consent. How do you do that? By doing all of those things. That's very clear to me. That's the international definition. I'm not making these things up. It's also consistent with the UN expert mechanism.

    We have a path forward. The question is whether this government is going to throw the free, prior and informed consent of indigenous people in the toilet, or it is serious about reconciliation.

     That's my answer, through you, Chair. Thank you.

    Thank you very much, Ms. Gazan.

    An hon. member: [Inaudible—Editor]

    Don't talk to me. Go through the chair.

    Members, please remember to direct your interventions through the chair.

    Not seeing any further debate here, I think we can go to a vote.

    First, we need to vote on the subamendment.

    (Subamendment agreed to on division [See Minutes of Proceedings])

    (Amendment as amended agreed to on division [See Minutes of Proceedings])

    (Clause 22 as amended agreed to on division)

    (On clause 23)

    The Chair: This takes us to clause 23 and NDP-44.

     At this point, I'll open up the floor to the NDP for NDP-44.

     Ms. Idlout, the floor is yours.

    I'm sorry. For which number...?

    We're on clause 23. The first amendment we have under clause 23 is NDP-44.

    Qujannamiik, Iksivautaq.

    NDP-44 is an amendment that was submitted to us by the File Hills Qu'Appelle Tribal Council in their request to have article 23 amended. The wording they have suggested to improve this bill would replace line 29 on page 13 with the following:

    It would also add after line 3 on page 14 the following:

    Qujannamiik.

     Thank you very much, Ms. Idlout.

    NDP-44 has been moved, so I'll open the floor up for debate.

    Does any member wish to make an intervention?

    Mr. Battiste.

     We're trying to find it in the notes here. We can't seem to find it. Do you want to give us a quick second?

    Colleagues, we're just going to pause briefly here.

    Colleagues, let's resume this meeting.

    Mr. Battiste had the floor. There was some confusion here. We were starting the debate of NDP-44.

    I just want to open the floor up to anyone who would like to intervene.

    Mrs. Atwin.

     I'm certainly okay with the (c) part of it, addressing additional possible things that could be found in an agreement.

    However, the key to this piece is the “may”, because it's giving them the power to create whatever they want in that agreement, but the “must” is telling them exactly what they have to do. I can't take the “must” part, but (c) is good with me.

     I noticed my cheeks are very red. We're doing lots of hard work here, folks.

     Thank you very much, Ms. Atwin.

    I'm going to turn it over to Ms. Idlout.

     I would be willing to consider a subamendment to replace the word “must” with “may”.

    However, the amendment was to change “may” to “must”. Keep the (c), but also keep the “may”.

    It looks like there's general agreement on that. I'm just quickly seeing if there's a way we can do that without having to go through translation with all this, so just wait one minute here.

    The Chair: Thank you. We're back.

    I just want to make sure that there is agreement among the committee members for the subamendment, which would essentially delete the amendment's part (a). That would thereby change it to what it was originally, which is, “The agreement may include”, instead of what was proposed in this amendment, which says, “The agreement must include”.

    Is there agreement around the table?

    It also keeps the (c), though.

     It keeps the (c), yes, but it just gets rid of the paragraph (a).

     Great. It looks like we have unanimous consent.

    (Subamendment agreed to [See Minutes of Proceedings])

    (Amendment as amended agreed to on division [See Minutes of Proceedings])

    The Chair: This takes us to NDP-45.

    I'll open up the floor to Ms. Idlout.

    Qujannamiik, Iksivautaq.

     NDP-45 was submitted to us by the Federation of Sovereign Indigenous Nations. They suggested that clause 23 can be improved by adding subclause (3), which I will read right now:

    Qujannamiik.

    Thank you very much, Ms. Idlout.

     NDP-45 has been moved. Is there any debate?

    Ms. Atwin.

     I have a question. I think it's the first time we see “Treasury Board” in the bill. Are there any implications to that as far as, again, the scope of the bill and its intention? I'm just curious.

     Thanks for the question.

    It is the first reference to “Treasury Board”. I guess the bill names the Minister of Indigenous Services Canada, so this introduces a new party into some arrangements. It's not entirely clear in my mind what Treasury Board would do in this case.

    If this is maybe intended to be a financial arrangement, that is typically with the Minister of ISC or with Finance Canada. Treasury Board usually supports the implementation of programming or the administration of funds, so it certainly is a new party. The Minister of ISC is named throughout, as you've commented many times. It's not entirely clear in my mind, at least, what the Treasury Board relationship or agreement-making would be in this case.

     I'm not seeing any other hands up, so let's go to a vote. Shall NDP-45 carry?

     I think we need a recorded division.

    (Amendment negatived: nays 10; yeas 1)

    (Clause 23 as amended agreed to on division)

    (Clause 24 agreed to on division)

    The Chair: This takes us to new clause 24.1 and CPC-8. I'll mention that I'll have something to say about this particular amendment, should it be moved.

    I'll open the floor up to Mr. Vidal.

    Thank you, Chair.

    On behalf of Mr. Melillo, I will move CPC-8.

    It reads that Bill C-61 be amended by adding, after line 8 on page 14, the following new clause:

    If you have something to say about it, Chair, I will wait until you have your say before I proceed any further, if that's all right.

    That's quite all right, Mr. Vidal.

    Unfortunately, I need to make a ruling on this. The amendment proposes to place the responsibility for entering into an agreement on the minister.

    House of Commons Procedure and Practice, third edition, states on page 770:

    In the opinion of the chair, this goes against the principle of the bill. Therefore, the amendment is inadmissible.

    I know, Mr. Vidal, that you mentioned you might have something to say. If not, that ruling will stay as is, and we'll move on to the next clause.

    Mr. Vidal, the floor is yours.

     Thank you, Chair.

    I don't have a lot of history here. I'm following the lead of my colleague. However, I would like to challenge your ruling on this.

    If the committee will indulge me, I'll explain why our side disagrees with this.

    Protection zones apply in areas that are typically areas of land not owned or regulated by the federal government. Water is also a resource with some exceptions, such as navigable waters, which are regulated by the provincial governments. This amendment is consistent with the requirement in paragraph 6(1)(b) that first nation, federal, provincial and territorial governments need to agree on “an approach to coordinate the application of” each government's laws in protection zones. The onus of reaching the agreement would be on the federal minister, not the first nation or provincial government. This addresses concerns raised by the nations about having to take the lead in negotiating these agreements. It would also stipulate what the agreement would likely already include and require it to be part of that.

    While protection zones remain undefined in the bill, we need to carefully consider their impacts. I understand we are still working on that definition, so this may become a factor later. These zones, depending on where and how big they are, could affect a large number of individuals who reside or work in an area. There needs to be clear consideration of how first nation laws will be implemented, shared with those who reside and work in these zones, and enforced.

     I have a point of order.

    I don't think I'm going to—

     There's a point of order.

    Chair, it's just procedural.

     I think, once we have called into question the ruling of the chair, we have to go right to a vote.

     It's true. I was giving some leeway to Mr. Vidal here, but that is technically true.

    Can I go right to my conclusion?

    Go to the conclusion. Then we'll go to the vote.

    I'll skip the rest.

    I will end with this: We'd like to emphasize that there needs to be clear consideration of how laws in a protection zone are applied and enforced to ensure residents and workers in an area can be made aware of new laws they would need to follow. A collaborative approach will ensure we can achieve this with the bill and its intended goals.

     Thank you, Mr. Vidal.

     With that, we will go to the vote.

    (Ruling of the chair sustained: yeas 7; nays 4)

    (On clause 25)

    The Chair: NDP-47 is the next amendment.

    I will open the floor up to Ms. Idlout.

    Qujannamiik, Iksivautaq.

     NDP-46 was an amendment submitted to us by the Okanagan Indian Band and—

    I'm sorry, Ms. Idlout. I hate to interrupt, but we're on NDP-47.

     I'm sorry. Did I delete NDP-46?

    In the last meeting, it was withdrawn pursuant to the request, I believe, from AFN.

    NDP-47 was submitted to us by the Federation of Sovereign Indigenous Nations. It seeks to improve the bill by amending clause 25 by adding the following:

    Qujannamiik.

    Thank you very much, Ms. Idlout.

    NDP‑47 is moved. We'll open the floor up for debate.

    Would any member like to make an intervention?

    Mrs. Atwin.

     I think I'd like to put forward a subamendment. I'll need you to suspend, if possible, so I can do that.

    Could we suspend briefly so I can put forward a subamendment?

    Absolutely. We can do a brief suspension here.

     I call the meeting back to order.

    When we left off, there was discussion about a subamendment, which has now been circulated.

    I'm going to read the subamendment to amend NDP-47. In the bill, on lines 18 and 19 of page 14, it would read:

    In French, lines 21 and 22 on page 14 would read as follows:

     Mrs. Atwin, you had the floor to move it, so I'll pass it back to you.

    I'll move the subamendment as read out by the chair. I can certainly do that again.

    Really, it's just combining the amendment Ms. Idlout put forward, but keeping the spirit of the original paragraph (c) of that part of the bill. It's marrying them. I don't know if I need to explain that further. Again, it's containing a federal role in agreements and federal responsibilities, and it's anticipated to be aligned with first nations priorities.

     I think that's so moved.

     Great. The subamendment has been moved. Is there any debate around the table? Not seeing any debate, let's move this to a vote.

    (Subamendment agreed to on division)

    (Amendment as amended agreed to on division)

    (Clause 25 as amended agreed to on division)

    The Chair: That takes us to new clause 25.1.

    We're now looking at amendment BQ‑19.

    Mr. Lemire, you have the floor.

     Was amendment NDP‑49 withdrawn?

     Yes.

    Okay. I hadn't marked that down. Thank you, Mr. Chair.

    The purpose of amendment BQ‑19 is basically to increase transparency by ensuring that the information is easily accessible on the government website. This will give the first nations more tools to make free and informed decisions.

    Thank you, Mr. Lemire.

     Is there any debate?

    Mrs. Atwin.

    This is BQ-19. Is that right?

    That's correct.

     It's a new clause. It's quite substantial.

    In clause 9 of the bill, it already reads, “A First Nation governing body that makes a First Nation law must, as soon as feasible after it makes the law, publish it on its or on the First Nation’s website, if any, and in the First Nations Gazette.” There is a process in the bill that was already developed specifically by first nations partners and with their language. Because of that, I would be opposed to this amendment.

     Thank you very much, Mrs. Atwin.

    Is there any other debate? Not seeing any other hands up, we can move this to a vote.

    Shall BQ-19 carry?

    It looks like we don't have agreement, so it won't carry on division.

    I would like a recorded division.

     Okay. We'll go to a recorded division.

    (Amendment negatived: nays 6; yeas 5 [See Minutes of Proceedings])

    (On clause 26)

    The Chair: The first amendment we have here is NDP‑50. Also, I will just mention that I will have something to say if NDP‑50 is moved.

     With that, I'll open the floor up to Ms. Idlout.

    Qujannamiik, Iksivautaq.

    NDP-50 was a submission that had several first nations speaking to it.

    It seeks to improve Bill C-61 by amending clause 26. Bill C-61, in clause 26, is to be amended by replacing lines 30 to 32 on page 14 with the following:

    Qujannamiik.

     Thank you very much, Ms. Idlout. Unfortunately, I need to make a ruling on NDP-50.

    The amendment attempts to create an obligation for financing that does not currently exist in the bill.

    As House of Commons Procedure and Practice, third edition, states on page 772:

    In the opinion of the chair, the amendment proposes a new scheme, which imposes a charge on the public treasury. Therefore, I rule the amendment inadmissible.

    That said, this moves us to PV-3, which is deemed moved.

    I would also like to welcome Mr. Morrice back to the committee.

    I'll pass the floor over to you.

    Before doing that, I'll mention that if PV-3 is adopted, PV-4, NDP-53, NDP-54, NDP-51, NDP-52 and PV-5 cannot be moved due to a line conflict.

    With that, Mr. Morrice, the floor is yours.

    I'm sorry, Chair. Can you repeat the numbers?

     Gladly. It was PV-4, NDP-51, NDP-52, NDP-53, NDP-54 and PV-5.

    With that, Mr. Morrice, we'll go to you.

    Thank you, Chair.

    As I've shared in my past interventions on Bill C-61, these are two more amendments, PV-3 and PV-4, that have come directly from Six Nations of the Grand River. They're specific to the section of the bill that we heard from Chief Hill on significantly and, I understand, from many others in their testimony to this committee with respect to the insufficient current language of “best efforts”.

    The current bill reads:

    Both PV-3 and PV-4 seek to remove the wording “must make best efforts” and simply replace them with the requirement that the minister “must ensure”. PV-3 includes more specificity about what a building is, including homes.

     I'll note that MP Idlout has very similar amendments, all of which also get rid of that language, so it looks like members of the committee members have multiple options for preferred text to follow what they heard from Six Nations of the Grand River and many others to improve the language of this bill, to meet what we heard quite a bit, which is that a “best effort” to provide safe drinking water isn't good enough. We must follow through on that. This is a bill that gives the Government of Canada the opportunity to do that.

    PV-4, which follows, is a briefer version of the same, which simply removes the words “make best efforts”.

     As I said earlier, MP Idlout has also provided several other options. I'm sure she'll be speaking to you.

    Thank you.

     Thank you very much, Mr. Morrice.

    With PV-3 moved, we'll open it up to debate.

    Mrs. Atwin has her hand up.

    I'll go to you first, Mrs. Atwin.

     Thank you, Mr. Chair.

    Thank you, Mr. Morrice, for joining us.

    We did. We heard significantly, from many of our witnesses, about the term “best efforts”. I, too, kind of question that language—where it's coming from and what the intentions are. I also completely understand the distrust that exists, of course, among first nation communities and membership, regarding relationships with the government as a colonial entity.

    However, I have come to learn, through legal precedent, that “best efforts” is actually the strongest language we have to ensure that what we want to achieve in Bill C-61 is met. Therefore, I think it's stronger to keep “best efforts”. I worry that removing it actually weakens things, because it's not covering all the bases to ensure it is met.

    We also have the piece around human rights in the bill, as I mentioned before. It's an additional layer. I'm concerned that will force the Government of Canada to intervene on first nation lands in situations that would be best left to specific first nation communities. On surveilling those specific buildings you're mentioning...I'm just not sure about the mechanics of that and what that would look like. Again, I go back to the idea that “best efforts” is the strongest possible language we have in legal terms today.

     I hope I'm getting that correctly. Maybe I could refer to our legal expert here and the officials.

    “Best efforts” is a fairly high standard. It's certainly higher than “reasonable efforts”, which was the term used in the safe drinking water settlement agreement, for example, from 2021.

    Without “best efforts”, though.... “Ensure” is slightly higher than “best efforts”. “Must ensure” would be a greater obligation.

     Thank you very much, Mrs. Atwin.

    Are there any further interventions?

    Ms. Idlout.

    I'm wondering, technically, what the similarities and differences will be between NDP-51, NDP-52, NDP-53, NDP-54 and NDP-55 if we pass PV-4. I can't do the analysis quickly enough by myself to determine whether I want to support PV-4. I wonder if we could get advice from the experts about those provisions.

    Depending on the responses, I will also submit a subamendment I submitted before, if we pass PV-3.

    I'm sorry. If the question is to compare and contrast, I'd turn it back to the chair.

    I think the question asked was how PV-3 compares with the other related amendments that all deal with the same paragraph. Those would be PV-4, NDP-53, NDP-54, NDP-51, NDP-52 and PV-5. It's a very simple question.

     Thanks. I appreciate the question.

    Maybe I'll start at the beginning and focus on PV-3, at the end here.

    How this reads to me in isolation is that it would compel a first nation. A first nation must provide clean water for all residents in their home. This is binding on a first nation, not on Canada. It would have an ancillary effect on Canada, but this would compel first nations' action.

    I also feel that—to take us back to day one or day two—we enshrined.... In this proposed legislation, there is already a domestic right for first nations to have access to clean drinking water. I would be concerned about the competing factor there. The precedent in law would be historic if the passed G-1 in this legislation becomes enshrined in law. I feel that is a very significant bar. I haven't done the legal analysis, and I'm not a lawyer to compare and contrast those things. However, the bar is very high because of G-1. It's enshrining, for the first time ever, a domestic right for all first nations to have clean and safe drinking water.

    I could stand corrected. I apologize to the chair, but this seems to be binding on a first nations government body to provide those actions.

     Thank you very much.

    I see Mr. Morrice has his hand up, so we'll go to him.

     Thank you, Chair.

    I just need to correct Mr. Barbosa. I'll read the beginning of clause 26. I think Mr. Barbosa might recognize that it starts on line 2 of the clause. I'll read it out again so that we're all clear. This does not put any additional responsibility on the first nation; rather, this is about the duties of the minister.

    Line 1 reads, “The Minister, in consultation and cooperation with”, and the amendment would change it to “First Nation governing body”, so it would read, “The Minister, in consultation and cooperation with a First Nation governing body, must” and then go on with, “ensure that all residents, legal occupants and users of buildings”.

    We also just heard from Mr. Fairbairn that the legal precedent is that “must ensure” would put a higher level of responsibility on the Government of Canada than “make best efforts” would. I believe, to MP Idlout's question, every one of the next few amendments switches to that “must ensure” in place of “make best efforts”.

     There are various additional words in PV-3, speaking to the amendment I brought forward. There's additional clarity on what a “building” is versus.... I'm sorry. That's PV-3. PV-4 is simpler. It would replace “make best efforts” with the minister “must ensure”.

    I hope that provides clarity for you, Chair, and members of the committee.

     Thank you very much. Mr. Morrice.

    I don't see any further debate.

    Mrs. Atwin.

    Mike, where you've added “legal occupants” versus “occupants”, can you just explain that?

    Yes. In PV-3, the Six Nations of the Grand River was looking to ensure that the Government of Canada understood that homes be included. I can read out PV-3.

    Rather than simply saying, “from a public or private water system”, PV-3 goes on to explain it's for “all residents, legal occupants and users of buildings”, and then has an additional “greater certainty” that “the buildings referred to” in that earlier section “include homes”. It goes on to share “uses of water” in homes.

     I certainly get that, but you've added “legal” before “occupants”, which wasn't previously there. What does that refer to? How do you define a “legal occupant” of a first nation home?

    That's a great question. I would welcome a friendly amendment if other members of the committee feel that “legal occupant” is unnecessary, or I can turn to witnesses. The word “legal” could be removed if that is seen as problematic for members of the committee.

     Okay.

     Next, I have Ms. Idlout.

    Qujannamiik, Iksivautaq.

    I'm looking at PV-3 and NDP-51. Just as an example, in PV-3, it reads:

    The first part focuses on buildings. It continues:

    This one focuses on homes, whereas I see NDP-51 reading differently. It reads:

    For me, NDP-51 seems to be quite different from PV-3 because NDP-51 talks about standards and the standards that need to be met. I don't understand how it could be ruled that, if we vote in favour of PV-3, we wouldn't be able to vote for NDP-51.

     Let me just quickly check into those. There is PV-3, and then there is.... My understanding is that there is a line conflict in the actual legislation, so it would amend something that would change that one. Just to make sure I understand that correctly, are you asking why NDP-53 and NDP-54 would not be able to be moved if we vote in favour of PV-3?

    It's all of them. You said PV-4, NDP-51, NDP-52, NDP-53, NDP-54 and PV-5.

    Yes. Those all make amendments related to the same paragraph, and there's a line conflict there, so those ones wouldn't be able to be moved.

     Thank you very much, Ms. Idlout.

    Mr. Morrice.

     Thank you, Chair.

    Based on that input from MP Idlout, I would agree with her that NDP-51 would offer stronger language. For that reason, I'm happy to withdraw PV-3 and move us to discussion on PV-4.

     Thank you, Mr. Morrice.

     In order for that to be done, given that it has been moved, we'll need unanimous consent from members of the committee. I want to make sure that amongst the committee we have unanimous consent for Mr. Morrice to withdraw PV-3.

    I'm not seeing any disagreement.

    (Amendment withdrawn)

    The Chair: PV-3 is withdrawn, so that takes us to PV-4, which is automatically deemed moved. Since PV-4 is deemed moved, NDP-53, NDP-54, NDP-51 and NDP-52 cannot be moved because they're identical.

    Mr. Morrice.

     Thank you Chair.

    PV-4 gets at the same input from Six Nations of the Grand River, which is specifically to remove “best efforts”. We've heard from witnesses from the department that removing “best efforts” increases the responsibility of the Government of Canada to “must ensure”.

    I think the interest of Six Nations of the Grand River was for any of these options that increases that responsibility. Should it be PV-4 or any of the NDP amendments that follow, the larger interest was to increase that level of responsibility, as we also heard from other first nation witnesses at this committee, with this being a real opportunity, in this legislation, for the government to ensure that safe and clean drinking water is provided.

    Thank you, Chair.

     Thank you very much, Mr. Morrice.

    I'll open it up to debate.

    Ms. Idlout.

     Could you remind me again? If we pass PV-4, which amendments wouldn't be able to be debated?

     It would be NDP-53, NDP-54, NDP-51 and NDP-52.

    Just to clarify here, NDP-53 and NDP-54 are identical to PV-4, but there is a line conflict with NDP-51 and NDP-52. If this were to pass, then those ones wouldn't be able to be moved.

    Ms. Idlout.

     Could it be explained to us what the line conflicts are and what the difference is between NDP-51 and PV-4? What would the practical effect be?

     Those are two questions. Number one is about the line conflict, so we'll address that first. We'll then turn it over to our witnesses to speak to the difference in the legal effect that they would have.

    The conflict is line 31 on page 14. They all address that same line.

    I will turn it over to our witnesses here to speak to the differences of those different amendments that were put forward.

     The significant difference is really in NDP-51. It has many more details in terms of qualifying the provision of safe drinking water and on what terms. It's more constrained than open-ended in the other amendment, PV-4.

    I would also note that all these efforts would be implemented through funding, which could create some considerations for Parliament when allocating funds, just so folks are aware. There is also the consideration around self-determination, as the spirit of this bill is really to support first nations in advancing their visions of self-determination. This would provide a more active role for the minister versus a less active role for the minister in a first nation-determined vision.

     Thank you very much, Ms. Idlout.

    I see Mr. Morrice has his hand up, so we'll go to him next.

     I just want to clarify the wording here. This is not about roles. We heard from Ms. Blake just now about roles. This is in a section on “Powers, Duties and Functions of Minister”. Specifically, the text is about the minister accomplishing a thing, in this case, “must make best efforts to ensure that”.

     I think it's important to clarify that this is not the text that we have in front of us here. Any of the amendments that follow, whether it's PV-4 or the NDP ones that follow, are clarifying a responsibility of the minister, rather than taking any self-determination away from a first nation. I guess I would turn to the witness to clarify if that's the claim in the bill.

    I appreciate the precision on language, and I agree. We're in the section on powers and duties, so I was just using a synonym with the word “role”, but I agree with you, absolutely.

     Thank you very much, Mr. Morrice.

    Ms. Idlout, we'll turn the floor back to you.

    I seek a very quick clarification. If we pass PV-4, we can't debate NDP-51. Is that correct?

     That's correct.

    I was seeking clarification on the differences between PV-4 and NDP-51, because I do see a difference. I don't know what the line conflict is. Could we get that explanation, because to me PV-4 is clearly setting a higher standard of what the minister must do?

    In addition, NDP-51 talks about standards that are in these specific areas outlined in (a), (b), and (c). Can the witness clarify the comparison between the two?

    The standards section in the bill, as debated by this committee, provides for the choice in terms of first nations and the application of standards, so it could also potentially be with NDP-51. It does say, “as set out” in those particular sections, but it might add an additional prescription that's not already covered in the standards section.

    Thank you very much, Ms. Idlout.

     Mr. Lemire, the floor is yours.

    I just want to say that we'll be supporting amendment PV‑4.

    Thank you.

    I'm not seeing any further interventions, so we can go to a vote.

    Shall PV-4 carry?

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

    The Chair: This takes us to NDP-51.

    I'm sorry to interrupt. I will suspend briefly to double-check something.

     Colleagues, we're back. I'm sorry for that brief pause.

    Ms. Idlout, I'll turn the floor over to you.

     Thank you.

    I think, from my line of questioning, it's already clear what NDP-51 attempts to do, so I won't summarize.

    I'll just move NDP-51.

     Thank you, Ms. Idlout.

    NDP-51 is moved. I'll mention that, if NDP-51 is adopted, both NDP-55 and PV-5 cannot be moved due to a line conflict.

    With that, I'll open it to debate. I know we've debated related motions here.

    I'm not seeing any hands up. I'll give you a short moment. If there are no more interventions, we can move to a vote.

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

    The Chair: This takes us to NDP-52.

    l'll open up the floor to Ms. Idlout.

    Qujannamiik, Iksivautaq.

    NDP-52 seeks to amend clause 26 by replacing lines 31 and 32 on page 14 with the following:

     It would also replace line 2 on page 15 with:

    Qujannamiik, Iksivautaq.

    Thank you very much, Ms. Idlout.

    I just want to notify members that if NDP-52 is adopted, PV-5 cannot be moved due to a line conflict.

     With that, I'll open the floor to debate. We've debated related issues.

     I don't see any hands up. Let's move to a vote.

     Shall NDP-52 carry?

    (Amendment negatived: nays 10; yeas 1)

    The Chair: That takes us to PV-5, which is deemed moved. I'll open the floor to Mr. Morrice to speak to this.

     Thank you.

     I'm speaking to this on behalf of our colleague Ms. May. Having failed to improve the responsibility earlier in this section, this amendment seeks to increase the obligations in a different manner later on in the section by adding words at the end of the sentence.

     Currently, the bill still reads:

    The amendment would add:

    Those sections follow in this bill.

     Thank you very much, Mr. Morrice.

     We'll open it up for debate. I see Mrs. Atwin has her hand up.

     Thank you, Mr. Chair.

     I thank Ms. May for bringing this forward as well. She's one of my very esteemed colleagues.

    I'm very supportive of this, especially because it really speaks to a written brief we received from the first nations advisory committee, but I would like to put forward a subamendment. I believe it's been sent to our clerk and hopefully distributed.

     It supports the amendment and reads:

    Again, it supports adding that additional clarifying language that connects to those funding obligations in the co-developed funding framework.

     Thank you very much, Mrs. Atwin.

     We're going to suspend very briefly to make sure we can have that circulated to everybody, and then we can continue the debate at that point.

     Colleagues, we're back.

     The amendment was circulated to all members' emails. While it was a very simple thing to change in English, it was a bit more complicated with the translation.

    You should have that now.

     I'll turn the floor back to Ms. Atwin, if there's anything more she'd like to say on this.

    Just to clarify, it's just taking out “as a minimum”. It's pretty simple.

    We'll open it up to debate.

    Go ahead, Ms. Idlout.

     I need to ask a question about clause 26 because it's talking about “best efforts”, and I still don't really understand the analysis behind it.

     When I did a quick search in CanLII, all of the case law related to “best efforts” speaks only to contract law cases, and I wonder how “best efforts” is being interpreted in this legislation to be so high.

    Yes, “best efforts” is a very high standard.

     You're right. A a lot of “best efforts” references are in contract law, but it's not exclusive to contract law. Basically, in this situation, the minister would have to take every possible step she could to ensure safe drinking water on first nation lands. She would have to work with her colleagues in cabinet. She would work with officials to ensure safe drinking water was delivered.

    In terms of standards, in law there are “reasonable efforts”. That was used in the settlement agreement. It's a lower standard. Still, you have to take significant steps to achieve a goal.

     In “best efforts”, you have to make your maximum effort to achieve a goal. If you do not achieve that goal, you would not necessarily be penalized for that, but if you did not make every attempt to achieve the goal in this, the context of this legislation, then the minister would be failing in her obligation. It is slightly lower than “must ensure”, but it is a very high standard for the minister to have to achieve.

    Can you describe what that “slightly lower” means? I think it's pretty clear by now that I've been here fighting for first nations rights. First nations have repeatedly asked us to make sure that Bill C-61 is better for them. I know that if we weren't able to get “best efforts” replaced with “must”, it would be very difficult for us to persuade first nations that we're doing our job—because of a “slightly lower” standard.

    I wonder if you could better explain to us how “best efforts” is such a high standard when it comes to first nations water—first nations water where we need to reconcile what this government has done to first nations to have them end up in conditions and situations where they might for another 50 years live with boil water advisories, and where first nations will have to most likely negotiate with provinces and territories over decisions that should have remained under first nations authority.

     I really need a clearer understanding of why “best efforts” is such a high standard, when first nations are very clearly asking for amendments to have “best efforts” changed to “must”. When the government stole that authority, not only did it do it by putting first nations into bands but by forcing them to live under the Indian Act and then keeping them suppressed by underinvesting in them for decades, for hundreds of years.

    How can we possibly persuade first nations that “best efforts” is something that is acceptable to anyone?

     I appreciate the question.

    Read in the context with other kinds of provisions, and as well as with what's already been debated by this committee, for example, my colleague here mentioned the recognition of a human right to safe drinking water on first nation lands. That would be in conjunction with this provision as well and would be a stronger piece, recognizing that human right.

    In terms of “best efforts”, practically, it means every single possible effort without having significant impacts on Parliament's ability to allocate funding, in cases of emergencies, for instance. It's every single effort with that one piece, in terms of the funding by Parliament, being the role of Parliament for all parties to debate.

    How is that different from replacing it with the word “must”?

    My sense of it would be that replacing it with the word “must” might impact Parliament's ability to allocate funding.

    Thank you very much, Ms. Idlout.

    I see that Ms. Atwin has her hand up. We'll go to her next.

    I'm still asking the same thing. In my mind, let's say there was a war, for example. That would be an example where extraordinary circumstances, perhaps, could prevent the government from meeting that funding responsibility because everything would be going toward the war effort.

    Is that an example of how extreme it would have to be in order for it to not meet that “best efforts” threshold without it ending up in court, and for that responsibility and liability to be on the minister and on the Crown?

     I think, read with other sections in this act—and there are sections that we haven't arrived at—“comparable services” is a significant piece. We have talked about the funding framework. The legislation proposes to develop a public-facing funding framework on “actual costs” to maintain and operate first nations water systems. That will be in the public vernacular. The minister, regardless of who that person is, must take action and move towards supporting the costs, comparable cost and actual cost, of water systems, which would be part of the tabling of this financial report.

    It is an extremely high bar, and read with other elements of this legislation, particularly comparable services and funding agreements in the public sphere, it would create a significant kind of impetus to support funding through the appropriation cycle of Parliament.

    Thank you very much, Ms. Atwin.

    Not seeing any other debate, why don't we go to a vote on the subamendment to PV-5.

    (Subamendment agreed to: yeas 10; nays 1)

    The Chair: Is there any debate on PV-5 as amended?

    Mr. Morrice.

     Thank you, Chair.

     I just want to ask a question of the witnesses here, because I think the intention of this amendment from Ms. May was to establish a floor, a minimum, that would meet the obligations in clauses 31, 33 and 34. The committee has now just passed a subamendment that removes the floor and that simply has it say, “in a manner that meets the obligations”. I'm not sure that was the original intention of the amendment.

    Maybe I'll turn to the officials. If it were to pass without “as a minimum”, what bearing does that have on the responsibilities of the government when it comes to providing funding and following through on their obligations in this act?

     I appreciate the question. I'll answer it a bit directly. It refers to section 34, which already includes “as a minimum”. The floor is already established. It's to ensure implementation of all those settlement agreement provisions, but also section 34, which already establishes that floor.

    I guess my interest is that I'm debating whether or not to withdraw the amendment now that it no longer has a minimum floor. I recognize that I might need unanimous consent to do that.

     I'm looking to understand this from the officials. If it were to pass in its current form, as amended, does it increase, make no change or decrease the responsibility of the Government of Canada?

    There's no change, given the existing provisions in the bill.

     Okay. I'll leave it to be voted on. It looks like I might not get UC anyway to take it out, given some of the looks I'm getting, but it looks like in its new form it makes no change regardless.

    Thank you, officials.

     Is there further debate on PV-5 as amended?

    I'm not seeing any. We'll move to a vote.

    (Amendment as amended agreed to: yeas 10; nays 1 [See Minutes of Proceedings])

    (Clause 26 as amended agreed to on division)

    The Chair: That takes us to clause 27, but we are past the time we had scheduled for the meeting today.

    We have a lot of work that we need to get done on Bill C-61. We do have a long day scheduled for tomorrow, but I want to give members the opportunity to move to adjourn if they want to do so. We have a lot of things that we need to get to, so whatever we don't get to tonight will be more we'll have to get to tomorrow.

     I move that we adjourn.

    We'll vote on it.

    (Motion agreed to: yeas 6; nays 5)

    The Chair: We will see everybody tomorrow at 10 a.m.

    The meeting is adjourned.