Bill S-8 (Historical)

Safe Drinking Water for First Nations Act

An Act respecting the safety of drinking water on First Nation lands

This enactment addresses health and safety issues on reserve lands and certain other lands by providing for regulations to govern drinking water and waste water treatment in First Nations communities. Regulations could be made on a province-by-province basis to mirror existing provincial regulatory regimes, with adaptations to address the circumstances of First Nations living on those lands.

(The House divided on the motion, which was negatived on the following division:)

Vote #506

Safe Drinking Water for First Nations Act

[The Speaker, Conservative, Andrew Scheer]

I declare the motion defeated.

There are five minutes left for the hon. member for Winnipeg--North. Are there any questions or comments?

Resuming debate, the hon. member for Edmonton--Strathcona.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, my apologies.

When the vote finished and you asked for questions and comments, I looked up and my colleague did have a question for me. I would like the opportunity to be able to answer the question. If not, I know my colleague, who I agreed at the beginning to share my time with--

[The Speaker, Conservative, Andrew Scheer]

So there are questions and comments for the hon. member for Winnipeg North.

Questions and comments, the hon. member for St. Paul's.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, does my colleague believe that in preparing its legislation the government took seriously the letter I sent the minister a year ago explaining that we would not be able to support any bill unless the resources were there to fix the water and wastewater treatments in all communities in Canada? Will 100% of first nation families in 100% of first nation communities have access to safe drinking water and wastewater management?

Does my colleague also believe that the government honoured the commitment in the UN Declaration on the Rights of Indigenous Peoples to free, prior and informed consent on any legislation dealing with first nations in this country?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, my colleague raised a critically important issue for all of us to recognize, the issue of financial resources. To deal with the issue of clean running water, we are not talking about tens of millions of dollars but literally hundreds of millions of dollars. Bill S-8 does not allow for any sort of government commitment.

Last year the leader of the Liberal Party introduced a motion in the House that all members voted in favour of, a motion aimed at ensuring that the government of the day recognized the urgency of dealing with the issue of clean running water. We were happy that the Conservatives voted in favour of the motion, recognizing how important an issue it was. However, we are disappointed they did not follow through by providing the necessary financial resources to deal with this critically important issue. Unfortunately, until the government recognizes the importance of financial resources, first nations will not be able to have the clean running water they are demanding today. We appeal to the government to look at the resource issue so that we can deal with the issue at hand.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, Bill S-8 would basically transfer responsibility, that is, it would transfer liability, to communities that have been calling out for years for resources to ensure that they will have safe and adequate drinking water. To New Democrats this bill seems to be aimed at cutting off a whole segment of Canadian society, a segment of Canadian society that is being denied basic water rights and safety in their communities. First nations will now told that they are responsible for anything that goes wrong, but will not have the resources to address that.

We see from the 2011 release of the national assessment of first nation water systems that over 39% of first nation communities in Canada are at high risk, meaning there is a threat to human health, and 34% are at medium risk. The shortfall is going to be $4.7 billion over the next 10 years.

Why does my colleague think the government did not bring this forward in a throne speech where it would have set out a clear commitment to clean drinking water and resources, and why is it proposing to basically leave--

[The Acting Speaker, Conservative, Barry Devolin]

The hon. member for Winnipeg North, a short answer please.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, the short answer is that this report was brought forward before the last federal election. It is interesting that it was only after the election that we were able to see the report.

I would emphasize that the vast majority of Canadians expect to have clean running water, and in most parts of the country that is the case, but not necessarily in many of our first nation communities. This is most unfortunate. More importantly, we need to get the government of the day to not just talk about and support the Liberal motion, but also to put forward the financial resources necessary to making a real difference.

[The Acting Speaker, Conservative, Barry Devolin]

Resuming debate, the hon. member for Edmonton—Strathcona.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker—

[The Acting Speaker, Conservative, Barry Devolin]

On a point of order, the hon. member for Winnipeg North.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, at the beginning of my speech, I indicated I was sharing my time with my colleague from Bonavista—Gander—Grand Falls—Windsor. I believe it is his turn.

[The Acting Speaker, Conservative, Barry Devolin]

When the hon. member for Winnipeg North was speaking, he moved a motion to adjourn the debate. At that point, it terminated the entire 20-minute time slot that had been allocated to the Liberal caucus. As such, we will be resuming debate with the hon. member for Edmonton—Strathcona.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, the members should calm down. They are cutting into my time. I know all the members, especially those on the other side, and especially the Minister of Foreign Affairs, are waiting with bated breath for my comments.

I thank my colleague from Timmins—James Bay for his heartfelt grounded intervention on behalf of his first nations constituents.

There are a number of members in the House who have first nations communities in their ridings. I know they stand with me, no matter what party they are in, in that it is time for us as a nation to stand up and look after their interests so they can be treated equably as all other Canadians. The member for Timmins—James Bay has been an incredible advocate for those constituents.

Bill S-8, the safe drinking water for first nations act, has been a long time in coming. Regrettably, it continues to be the policy of the government not to bring important legislation, in a timely manner, before the elected House. Instead, for the second time in a row, it tabled the bill first in the Senate.

Now the Conservatives are trying to object to the fact that we might actually want to propose changes to the bill, changes that have come to our attention by the first nations themselves. It is absolutely reprehensible. It shows a great disdain for Canadians who have chosen to elect us and send us to this place.

First, it is important to consider that the provision of safe drinking water for first nations is a federal responsibility. This is not a responsibility that the federal government can slough off to the provincial and territorial governments.

Second, no federal laws exist to regulate safe drinking water or waste water in first nations communities, so we have a complete vacuum. This is unlike the provinces and territories, where they have seen cause to step up to the plate and put in place regimes to protect those for whom they are responsible so they can live in the modern world.

Another appropriate starting point is to clarify the state of drinking water in first nations communities. The current update posted on the Health Canada website reports that as of October 31, 122 first nations communities across the country remain under a drinking water advisory. That means 122 first nations communities cannot go to the tap for a glass of water. It is absolutely reprehensible in the 21st century. That is 122 communities and countless numbers of aboriginal children, elders, people who risk illness from contaminated drinking water in 2012. It is simply unforgiveable.

It is not just me or my colleagues on this side of the House who say it is unforgiveable. In her final audit report in 2011, former Auditor General Sheila Fraser called for even deeper reforms to ensure that first nations on reserve were accorded the services comparable to other Canadians, including access to safe drinking water.

Mrs. Fraser identified that structural impediments to improve access to these basic services, which most other Canadians take for granted, must be resolved if we were to see real results. These include not only a legislative base or program, which is what the government has presumably put forward, but also clarified service levels, commensurate statutory funding, an end to the reliance on policy or contribution agreements and support to organizations that support service delivery to first nations.

For example, the Alberta Technical Services Advisory Group has for many years supported the first nations in addressing problems with their drinking water systems. I might point out that those are the very kinds of organizations the government has chosen to cut back in the budget.

It is very important what Sheila Fraser had pointed out. To this point in time, in this day and age in the 21st century, first nations communities have to wait, with open hand, for the government to decide from year to year whether they will have sufficient funds to provide a glass of safe drinking water for their children. She said that it was beyond high time that this obligation to transfer the necessary money be imposed by statute and be obligatory. We do not find that in Bill S-8.

The government made a previous half-hearted effort at proposing legislation and then let it die on the order paper.

Bill S-11, also tabled in the Senate in 2010, was roundly criticized by first nations and legal experts. Bill S-8 was also first tabled in the Senate and now finally brought before the House.

Regrettably, there has been little parallel action on the other measures needed to address the critical need for safe drinking water supply in first nation communities.

It should be pointed out that the government is well aware of the core barriers experienced by the majority of first nations in providing safe drinking water supplies to their communities, including: the equipment, construction and maintenance facilities, especially in remote areas, is costly; much of the necessary infrastructure is either lacking, obsolete or of poor quality; there is a limited local capacity or limited ability to retain qualified operators and even when they are trained, they then move on to other communities where they can be paid better; and, limited resources to properly fund water system operation and maintenance.

The current federal budgeted amount of $330 million over two years offers only a small percentage of the $4.7 billion capital costs and estimated $419 million per year to upgrade and run drinking water systems in compliance with the intended law.

If this intended law is passed, there will almost immediately be an obligation by all the first nations to deliver safe drinking water. I say almost because the government fails to mention that the law absolutely has no substance, so it will take five to ten years to actually develop these regulations. Once that is in place, then we will have close to a $5 billion deficit, with no undertaking that it will provide that.

No new moneys have been committed for the promised direct negotiations with the first nations on the strategy to implement the proposed law or for the promised negotiation process on the myriad of complex and technical regulations necessary to give any real substance to Bill S-8. There is no indication that the government has begun to move away from the one-off contribution agreements to long-term financial commitments to finance drinking water systems, as recommended by the former auditor general.

Far from delivering the support for organizations that can support first nations in developing and managing effective drinking water, in this budget the government has cut back support to these entities, including treaty organizations that provide support on technical and policy matters to first nations, which brings us to the matter of consultation on the bill.

The duty to directly consult first nations on legislative or policy matters that affect them is not a mere nicety. Aboriginal Canadians are not mere stakeholders in this legislative process. The duty to consult and accommodate is a constitutional duty established in legal precedent echoed in the UN Declaration on the Rights of Indigenous Peoples, which Canada finally endorsed.

At the January Crown-First Nations Gathering, the government publicly committed to support first nations self-government to strengthen and reset the government-to-government relationship and to move away from the unilateral imposition of laws and policies.

Self-government was endorsed under the UNDRIP. However, at the last minute, we saw some move, despite calls by first nations over decades, of the minister to met with at least one treaty group in Alberta.

I will quote a comment made at the Crown-First Nations Gathering on the consultation process, which states:

At the recent Crown–First Nations Gathering, First Nations and our Government committed to working together to support strong, healthy First Nation communities...[The bill] is a key milestone in making this a reality...

That statement was made by the Minister of Aboriginal Affairs and Northern Development, who said that the process for the consultation on Bill S-8 was a milestone in making the government-to-government relationship a reality. Yet we have a statement from the Assembly of First Nations stating that the government has continued a pattern of unilaterally imposing legislation that does not meet the standards of joint development and a clear recognition of first nations jurisdiction.

This so-called exceptional process of sitting down and reviewing proposed legislation was in fact the common practice of most past governments. In many instances, white papers or even draft formats of bills were circulated and consulted to ensure that the interests of all 600 first nations, not just one first nation, were considered and accommodated. This made for sound, supported, workable legislation. Again, in the case of the first nations, this consultation is an obligation, not just an option.

Even when late in the day some discussions did occur with first nations, they expressed concerns that their issues had not been fully addressed. They were also clear that the process did not constitute “consultation”. This is made evident in testimony before the Senate on the bill.

By way of example, Treaty 6, 7 and 8 testified that while a limited number of their representatives had a chance to review the bill, incidentally, less than a week before it was tabled in the Senate, a number of significant outstanding concerns were yet to be addressed. I reference these three groups as they were among the few that the minister finally relented to discuss in more detail their concerns with the proposed law before it was tabled.

In his testimony, Charles Weaselhead, Grand Chief of the Treaty 8 First Nations Chiefs Association, echoed the views of many when he said that “support of the Alberta Chiefs is not unconditional” and that first an agreement must be reached “on an adequately funded joint process for the development of the regulations”.

We have members of the one group, which the minister actually took the time to hear what their issues, saying that it is not enough. What they need at the same time is the commitment of the money.

Further, Grand Chief Weaselhead said:

Second, the national engineering assessment identified that only three First Nation systems in Alberta are operating safely with certainty....About a dozen systems in Alberta pose significant risks to human health.

He advised that about $160 million was needed to update facilities just for Alberta.

He testified that while they were willing to be patient, their patience was not limitless. He said, “the Government of Canada must also make a firm commitment toward infrastructure, monitoring and capacity”.

They have yet to obtain any binding commitment to a regulatory development process that is well-funded and approved by the chiefs and no commitment of the $140 million funding gap identified by the National Engineering Assessment for just Alberta.

I now wish to share a number of the serious deficiencies identified in the bill itself as a safe drinking water regulatory framework.

Frankly, I am stunned that the government has stated at this stage that it will not allow amendments. This kind of questions the value of even having a committee and bringing in these first nation and legal experts again.

However, these are some of the issues that were raised before the non-elected house. Many of the issues were raised by expert panels and legal experts testifying in the Senate and in previous government reviews, treaty organizations and individual first nations.

The main purpose the bill appears to have is transferring liability from the federal government to first nations for delivery of the drinking water regime. Of equal concern is the fact that the full long-term costs and liability have yet to be calculated. The transfer of liability would be made with no binding commitment that the federal government would provide the necessary funds for technical training or equipment. However, Bill S-8 carefully imposes limits on the liability of federal ministers and officials.

Bill S-8 is essentially lacking in substance. It would merely be an enabling law. It would allow for, but does not require, any federal action to promulgate the myriad regulations necessary to establish drinking water standards, public hearings, appeal procedures, standards for training and certification of water systems and operators, waste water disposal, emergency response and so forth.

The law would impose no obligation on the federal government to deliver these rules in a timely manner. It would impose no obligation on the federal government to finance development or implementation of the first nations drinking water regime. Despite the non-derogation clause, Bill S-8 may have as its key purpose to transfer away treaty and constitutional obligations in this regard.

Incredibly, the law would impose no requirement for consultation with the first nations in the promulgation of these rules, regardless of the overriding constitutional duty to consult and despite the fact that most laws enacted these days, especially for environmental matters, specify that the government must in advance consult.

Finally, the bill ignores the advice of the very expert panel appointed by the federal government, which recommended the establishment of two independent entities to provide direction and oversight on the water regime.

A first nation water commission was recommended. It was to be mandated to oversee the licensing and operation of water facilities and to advise the ministers and first nations. The second entity recommended was a first nation water tribunal mandated to hear appeals on water approvals and investigate complaints. It was suggested that entity could provide one of the bridges to self-governance over water, which has been promised.

As pointed out by the Assembly of First Nations in their brief to the Senate, despite appreciation expressed that the government provided a slightly stronger non-derogation clause it appears to include a broad loophole in the words “except to the extent necessary to ensure the safety of drinking water on first nation lands”.

The obvious question arising is: Who decides that? Consistent with the remainder of the bill, it appears it would be the minister.

Another issue is that, astoundingly, the bill imposes no obligations on the federal government to consult first nations in the promulgation of any of the implementing regulations. This not only runs contrary to most environmental laws, as I said, but to their constitutional obligation.

Concerns have been raised with the option of incorporation by reference of provincial regulations. This has not been a common practice and serious concerns have been raised by a number of legal experts.

It is incumbent on the government today to admit that the law is not enough. It must, today, commit that it will not enact this law until it has provided the resources necessary to genuinely implement the long overdue protections for first nation water.