Indigenous and Northern Affairs Committee on May 28th, 2013

[Christopher Devlin]

Budget 2010 allocated the $330 million, and then in Budget 2012, $330 million was committed over two years, but the action plan itself was not formally renewed. I haven't seen something since then, but I noticed that in the legislative summary.

Again, the bar is really concerned about the law reform issues raised by the bill. If we're going to have a bill, we want to make sure it strikes the right balance in terms of the section 35 rights issues.

You need the right amount of money to have the municipal infrastructure, and that will depend on the circumstances community by community. That's difficult to assess. Frankly, there are people who are far better at assessing that than the aboriginal law section of the—

[Stella Ambler, Conservative, Mississauga South, ON]

While I agree with you, obviously when you made that comment it was a little bit off the rest of your comments. I simply wanted to make sure that you knew about that, because we take this seriously, too.

My colleague, Ms. Bennett, was talking about clause 11. To switch over to that for a second, you made two points on it. I was wondering if you could elaborate on the second point, because you mentioned that we don't know yet.

Could you tell us what the options might be, as we're developing the regulatory framework, to have that liability end up in a fair place, legally speaking, to allow for all the parties to take their fair share of responsibility if something goes wrong? How could we do that?

[Christopher Devlin]

That's an exercise in drafting the regulations, in that it really depends on who's going to be charged with owning the facility, who's going to be charged with operating the facility, what that's going to look like for the particular first nation. Is it the first nation itself? Is it the local municipal government that's going to be providing the water to them?

It's going to be so context specific that in order to be fair, I think you'd have to look at the context of each situation when you're drafting the regulations that are going to apply to that situation, to know who should bear their fair share. Because we haven't seen the regulations, I don't know. But I think subclause 11(3) is envisioning a situation where the Government of Canada no longer is the owner-operator and is really not a part of the delivery of the water system or the waste management system, so no longer wants to have the liability for it.

The question that subclause 11(3) begs is, who is going to be the owner and the operator? I think Grand Chief Roland Twinn's concern was that if it's the first nation, particularly if they're the operator or are responsible jurisdictionally, they're getting all the liability without any guarantee that they're going to get the resources. If it comes from the municipal district beside the reserve, they're not even going to own the system they're now potentially liable for.

Those are all highly contextual, highly specific situations that have to be dealt with in the context of the regulations that apply to that particular first nation.

[The Chair, Conservative, Chris Warkentin]

Thank you, Ms. Ambler. I do apologize. Your time has expired.

We'll turn to Mr. Bevington for the final questions.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you, witnesses. It's a very interesting discussion. You brought up incorporation by reference, which is something that's in front of Parliament right now in Bill S-12. Under Bill S-12 there's provision for ambulatory reference. In other words, regulations changed by other bodies will apply to the regulations taken on.

What do you think of a situation where the provincial regulations can be changed without any interaction with the federal government, without any interaction with the first nations under section 35? What do you feel about the conjunction of these two bills coming together where these ambulatory opportunities are now within the regulations? How does that affect the rights of first nations?

I'd ask you both to comment on that.

[Ramani Nadarajah]

I'm going to leave it to Mr. Devlin to deal with the issue of how that would impact on aboriginal rights in relation to incorporation by reference. My concern with the incorporation by reference is really about uniformity of standards, which is that it potentially allows uneven standards on reserve lands in terms of drinking water quality. That would be our primary concern with that issue.

[Christopher Devlin]

I love a question that asks me how I feel about something, because I have many feelings about referential incorporation that are spawned from section 88 of the Indian Act. I've never much liked that section, but it has been there for a long time in the Indian Act. In that situation, provinces can amend their motor vehicle legislation without giving any notice to the federal government and that legislation and regulations can apply on reserves under section 88 of the Indian Act.

Here I think you have a similar ability: the regulation, as opposed to the statutory provision, can scoop up existing provincial regimes. The provinces can adapt that from time to time. The only proviso in the referential incorporation provision is that, unlike in the situation under the Indian Act, the Governor in Council can make adaptations of those provincial laws, which is, I think, a step forward from where we see section 88 of the Indian Act.

Now I'm not familiar with Bill S-12, so I don't know if that kind of language has been included there. But if one is going to have referential incorporation in a bill, although I don't like these clauses generally, I think it's a better clause if it allows the Governor in Council to adapt the laws of the province to deal with the specific situation on the reserve.

[Dennis Bevington, NDP, Western Arctic, NT]

You weren't quite getting to my point. Regulations that can be ambulatory in nature are then determined by those who set out the regulations. If it's a body other than the federal government, then it can adjust the standards for safe drinking water. It can change the perspective of how.... You set up a drinking water plan according to certain regulations, certain standards you have to meet. If the province changes them without consultation with first nations, I can see a problem arising there.

[Christopher Devlin]

I can, but with respect, that's not entirely how the provision reads. Although it does referentially incorporate provincial laws, and the provinces can still change their laws without notice to the federal government, the Governor in Council retains the power to make adaptations of those provincial laws as considered necessary. So there's a residual power.

The question that it begs, though, is whether the Governor in Council will exercise that power. We just don't know. Again, that's going to be very context-specific. But if one is going to have referential incorporation in a bill, I'd prefer that the federal government reserve that power to nonetheless adapt those provincial laws of general application as it deems necessary. I think that's a better way of doing it rather than just having referential incorporation carte blanche as you see under section 88 of the Indian Act.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

Thank you, witnesses, for being with us this morning. We certainly appreciate your willingness to bear with our scheduling and we appreciate your opening statements and your willingness to answer questions.

Colleagues, I just note that the vast majority of amendments, we believe, have been submitted. We have notice that some are continuing to come in. We will make those available to committee members by tomorrow morning so that everyone can review what has been submitted by their colleagues. Our next meeting, Thursday's meeting, is going to be in the East Block. We'll send out notice of that, but just take note of that.

Thank you so much.

The meeting is adjourned.