The following is a transcript of Heather Exner-Pirot’s testimony before the Canadian House of Commons Standing Committee on Indigenous and Northern Affairs. She warns that poorly drafted legislation will create uncertainty, conflict, and delays in delivering clean water to First Nations communities.
The recording occurred on October 3, 2024.
By Heather Exner-Pirot, October 17, 2024
Thank you, Chair and members of the committee, for hearing my testimony
My interest here is not to question the rights of indigenous peoples to clean drinking water or the jurisdiction that first nations have over water on reserve. Like almost all Canadians, I find the lack of access to clean water experienced in many of our indigenous and northern communities to be a source of embarrassment. I understand it is a complex technical and political issue, and I applaud any good-faith efforts to address it.
My interest, rather, is as a policy analyst with expertise in resource development and indigenous affairs. While I applaud the motivation behind this legislation, it is poorly drafted. The bill uses broad language and is ambiguous in its interpretation and application. If left unimproved, it will create unnecessary uncertainty and likely conflict for first nations, landowners, industry stakeholders and other levels of government. It will be left to the courts, at great public and private expense, to try to interpret what is intended in the legislation. This is not in the best interest of either first nations or Canadians in general.
I will endeavour to be more specific.
First, many key concepts are underdefined or ill defined in the bill. This circularity is best illustrated in the definition of “protection zone”. In the definition section, the bill states that “protection zone has the meaning assigned by regulations made under subsection 21(1)”, but subsection 21(1) says, “The Minister must make regulations defining ‘protection zone’ for the purposes of this Act.” Evidently, there is not, as of yet, a definition of “protection zone”. This seems backwards and unhelpful, especially considering the affirmations made about first nations jurisdiction over protection zones and their prominence in the text.
Similarly, the bill uses the terms “adjacent” and “source water” without defining them, though they could be interpreted as meaning a lot of different things and have very important connotations in the bill.
It consistently uses the term “First Nation lands”, which is ill defined in Canadian law, instead of using terms that are well defined. To me, there’s a world of difference between “reserves” or “Lands reserved for the Indians”—as described in class 24 of section 91 of the Constitution Act, and which the definition section refers to—and “First Nation lands”. The latter is often used interchangeably with “first nations territories”, which is often understood to mean most of Canada, barring Inuit lands. The spirit and intent of a term such as “First Nation lands” creates expectations that I don’t believe the government has any intention of meeting and, in the case of conflict with other levels of jurisdiction, any authority to meet. I think it’s better to be specific throughout.
Other areas of uncertainty are as follows.
First, the bill provides for a first nations law to prevail “to the extent of any inconsistency or conflict, over a provision of an Act of Parliament”, but it does not say what happens if two or more first nation laws conflict with each other.
Second, the bill provides that “The quantity of water available on the First Nation lands of a First Nation must meet the drinking, cooking, sanitation, hygiene, safety, fire protection and emergency management needs”, but it does not say what happens if the water available isn’t adequate.
Third, it commits the Government of Canada to taking “traditional knowledge into account in all decision making regarding water services on First Nation lands, including with respect to measures related to water services on First Nation lands that can mitigate climate change”. It’s not at all clear what measures this could be referring to—how water services could either exacerbate or mitigate climate change.
I won’t further belabour the ambiguous drafting of the bill, and I will submit my questions to the committee in written form so they are easier to respond to. I’m not a lawyer, and I expect the government has lawyers it can ask to tighten up the language.
However, I want to finish by making this point: There is widespread consensus, even from this government, that we need to reduce regulatory barriers and improve permitting certainty in order to get things built in this country. We need major projects and infrastructure simply to maintain our quality of life—things that most Canadians take for granted but that are starting to be compromised—as well as basic infrastructure and development that many indigenous communities are still waiting to enjoy.
However, our lawmakers continue to pass legislation and advance policies that further add to this uncertainty, keep investment at bay and ensure the courts will need to be involved at some point in the future, at great time and expense. Poorly drafted legislation does not benefit first nations, but it does apply costs to all Canadians.
I support many of the tools introduced in this bill to ensure clean water on reserve, including expanded jurisdiction, higher standards and more funding, but I would respectfully request that this committee apply its talents to ensure this bill is clear, constructive and implementable from day one.
Thank you for your attention.
Heather Exner-Pirot is the Director of the Energy Program at the Macdonald-Laurier Institute.
