Indigenous and Northern Affairs Committee on May 28th, 2013

[Christopher Devlin, Executive Member, National Aboriginal Law Section, Canadian Bar Association]

Thank you. I note that it's already past six or seven in Victoria, so I'm fine at this point. It's not quite as early as the last time.

Our comments today are really focusing on the non-derogation clause of the bill, but I want to start by saying that it is critical that there be safe drinking water on reserve. The CBA supports that. The bill, by design, is a framework bill; it's enabling legislation for subsequent regulations. That's fairly obvious, and there's a great deal of flexibility in the bill, particularly with respect to subclause 4(1), subclause 5(4), and clause 7. I'll be coming back to that at the end of my opening comments.

Our concern—and this survives from the previous iteration of the bill, BillS-11—is now with clause 3 of Bill S-8. That's where there's this exception or ability of the regulations to derogate and abrogate the aboriginal rights protected by section 35 of the Constitution Act to the extent necessary to ensure the safety of drinking water on first nation lands.

Our simple point to the committee is that we don't believe this is necessary and we don't believe it is required for the bill to be effective as it's drafted. We don't see anything that suggests that it's necessary for the bill to be implemented, and we also question whether it's constitutionally valid to have this kind of language in the legislation. When we made previous submissions, we have talked about the test for infringement that was set out by the Supreme Court of Canada in the Sparrow decision. I'm sure you've heard testimony about that. It does place safety and conservation of resources at the top of the priority list when one is looking at potential infringements, and then you go down in order after that, to the provision of sustenance and ceremonial and traditional practices for first nations, then to commercial rights, and finally to other kinds of users of resources.

I want to dwell on that for a little bit, because inherent to aboriginal rights and to treaty rights is the safe exercise of those rights, which is something that may have been missed by the drafters of the bill. Safety and the preservation of resources are actually inherent, and the courts have discussed this in a variety of contexts, to the exercise of aboriginal rights. Most of the time the courts have discussed it in the context of hunting. You can't hunt in an unsafe manner. You can't shoot from your pickup truck on the side of the road. You actually have to engage in safe hunting practices, and I think with respect to any aboriginal rights involving water and water management, those have to be exercised in a safe manner.

So we really see this qualification as being unnecessary, because inherent to aboriginal rights and treaty rights is safe management, ensuring the safety of the resource so that it is managed and applied in a safe manner.

The other point that I want to bring up is that because this is framework legislation, we don't have the regulations in front of the committee. We don't really know what they're going to be. I did mention that it's a very flexible bill and that the bill anticipates a variety of regulatory regimes across the country. There could be one uniform regulation. There could be a multitude of regulations—we don't know at this point. And for us, that raises a concern or there being not only a multitude of federal regulations but also the potential for the incorporation by reference of provincial water regimes in lieu of federal regulatory regimes. We're not sure of the degree to which those provincial regimes will honour the section 35 rights of the first nations in question. Those provincial regimes have not been developed, frankly, with any reference, for the most part, to section 35 rights, and so it's quite an open question on how that is all going to interrelate.

Here I think of Chief Roland Twinn's earlier comments. He was anticipating the potential for significant litigation. I think there's a real risk of that here, particularly when we're thinking about the derogation of the section 35 rights by referentially incorporating provincial water management regimes.

I think the ideal way to proceed is to develop regulations on a case-by-case basis with the affected first nations regarding safe drinking water on their particular reserves. Then regulations are drafted specific to those first nations, whether it's the first nations that were here today or other witnesses that you've heard from.

To do all of that does not require the derogation clause or the exception at the end of clause 3 of the bill.

I'll leave those as my opening comments.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We'll now turn to Ms. Nadarajah, who is here by video conference.

You've been waiting awhile, and we appreciate your willingness to wait for us. We'll turn to you now. Thank you.

[Ramani Nadarajah, Counsel, Canadian Environmental Law Association]

Thank you, Mr. Chair and members of the committee.

My name is Ramani Nadarajah, and I am counsel with the Canadian Environmental Law Association.

CELA is a non-profit, public interest organization that was founded in 1970. It's an environmental law clinic that provides legal services to low-income people and disadvantaged communities by undertaking litigation and law reform to strengthen environmental protection.

We agree that improved access to safe drinking water is urgently needed in many first nations communities. The need for an appropriate regulatory regime for water and waste water in first nation communities has been highlighted in numerous reports, which I believe have been alluded to by previous speakers.

CELA has reviewed the bill and we believe that for the bill to achieve its goal of ensuring safe drinking water for first nations communities while protecting aboriginal and constitutional and treaty rights, three key issues need to be addressed.

First, constitutionally protected aboriginal and treaty rights need to be afforded protection under the bill. Second, a multi-barrier approach for first nations water resource management should be incorporated in the bill. Third, first nations governance structures need to be respected.

I am going to deal with the first issue now, which I think the Bar Association has already addressed, the issue of non-derogation in clause 3. CELA notes that the Supreme Court of Canada has already established the test for infringement of protected aboriginal and treaty rights for legitimate legislative objectives under the Sparrow decision. Given the existing jurisprudence on this issue, the limiting section in clause 3 of the bill is unnecessary, in our view.

Consequently, as we noted in our brief that was submitted earlier, our position on this issue is similar to what was addressed before. We don't think that particular section is necessary, but we also note that if there is a non-derogation clause, we submit that the one included in Ontario's Clean Water Act, which was designed for the protection of the sources of drinking water, is the most appropriate provision.

That provision simply reads as follows in section 82 of the Clean Water Act:

For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for the existing aboriginal and treaty rights of the aboriginal peoples of Canada as recognized and affirmed in section 35 of the Constitution Act....

The second issue the bill needs to address is to provide a more detailed provision about how to improve water resource management on first nation land. To a great extent, the bill's implementation will be dictated by the content of its regulations. However, we note that the list of regulation-making powers provided in clauses 4 and 5 of the bill fail to clearly ensure a multi-barrier approach for first nation drinking water systems, as recommended by the Walkerton and North Battleford inquiry reports.

A multi-barrier approach would require the following: reliable certification of labs; clear oversight and reporting responsibilities; clear delineation of the roles of health and environment water officials, including first nation officials and their governments; reporting of adverse events; delineating responsibility for responding to adverse events, and clear protocols; public involvement of community members, disclosure and transparency; means of receiving expert third-party advice, such as in Ontario through the Ontario Drinking Water Advisory Council; and outlining of resources and funding mechanisms, including for remote and small systems; and providing for infrastructure planning over time. CELA admits that a multi-barrier approach needs to be incorporated into the bill, otherwise it will remain simply as vague enabling legislation.

Finally, CELA admits that there needs to be recognition and protection of first nations' rights over the governance of water on reserve lands. In this regard, we have concerns about paragraph 5(1)(b) of the bill. That paragraph states that the regulations may “confer on any person or body any legislative, administrative, judicial or other power that the Governor in Council considers necessary to effectively regulate drinking water systems and waste water systems”.

The generic nature of this clause is a concern, given that the expertise and professional qualification of “any person” is undefined. That provision has the potential to result in possible loss of first nations' ability to control and manage their lands and water systems.

In addition, we note that clause 7, which is the conflict clause in Bill S-8 , provides that regulations may prevail over laws or by-laws made by a first nations to the extent of the conflict in respect of protection of drinking water.

Both of these clauses, in addition to clause 3 that I discussed earlier, have the potential to undermine the right of first nations to self-govern. Therefore, the committee should consider revisions to these provisions to ensure that this is not the case. Those are all my submissions, subject to any questions you may have.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We'll turn to Mr. Genest-Jourdain for the first round of questioning.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Good morning, fellow lawyers.

My questions will mainly focus on subclause 5(1)(h) of the bill. I invite you to read it quickly. It says the following:

(h) confer on any person the power to verify compliance with the regulations, including the power to seize and detain things found in the exercise of that power;

What do you think “any person” means?

What do you think that notion of person implies under this specific provision?

[Christopher Devlin]

Thank you for the question.

Because this is a framework piece of legislation, we don't have the regulations in front of us. One would presume that “any person” would be someone with lawful authority acting pursuant to some sort of legal authority. But we don't know whether it is an official from the Department of Aboriginal Affairs, a peace officer, or a provincial water management inspector. We don't know.

I thought your question was actually going to be more about the power to seize and whether that's consistent with the Indian Act. It would seem to me that the regulation can't trump the Indian Act, but I guess that's to be dealt with on another day.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

You're getting a bit ahead of me.

What do you think the power to “seize and detain” implies? What things can be seized and detained, and what is the scope of the power conferred by this provision?

[Christopher Devlin]

Again, because the regulations aren't before us, we just don't know. These are just the possible things that the regulations could make available.

One of the interesting things would be whether the property that would be subject to the seizure would be first nation property or not. If it's not first nation property—say it's a water plant owned by the local municipality that's situated on reserve land—then that would be different. If it were actually owned by the first nation then there could be a conflict there between section 89 of the Indian Act, which doesn't provide for seizure of property on reserve that is owned by first nations, and the regulations.

I'm not so sure it would be saved by clause 3 because that's a statutory provision. It's arguable whether it's an aboriginal right, but on its face it's a piece of federal legislation that says you can't seize Indian property on reserve. That would have to be figured out, presumably by whomever drafts the regulations and, in the process of drafting the regulations, how that would apply on a particular reserve.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

My next question is a bit broader.

Previous witnesses have said that the result would likely be a breach in the fiduciary relationship between the crown and first nations, since that delegation does not take into account criteria on water provision and water quality. That obligation would be taken on by first nations, but they wouldn't necessarily have a designated budget.

I would like to hear what you think about that situation.

[Christopher Devlin]

I'm sorry, but I didn't quite follow the question. Are you wondering if the regulation is a breach of the fiduciary obligation of the crown?

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Could the application of these provisions constitute a breach in the fiduciary relationship, since those obligations are delegated to first nations, but there is no budget envelope set aside to ensure an adequate follow-up to those measures?

[Christopher Devlin]

Thank you.

Certainly that goes outside our brief, so I have to be careful on that score. It seems to me that because this is just a permissive provision, where the regulations may do these things or they may not, we would really have to see the specific regulations that are drafted pursuant to this statutory power to know if there were a breach there or not in the first place.

I wouldn't be prepared to say that it is a breach in and of itself at this time.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We'll turn now to Mr. Seeback for the next round.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

Christopher, thanks for your testimony today.

I want to talk about a couple of things. One of the things you said is that this is a very flexible bill, and I think that's true. One of the things I find when we go through the study of this bill at committee is that people seem to forget that this is enabling legislation, so it provides a framework. That's another word that you're using.

When you're drafting a framework or enabling legislation, you're going to put together a whole grab bag of things that may be in there because you want to cover every possibility that you may regulate on. Would you agree with me, with that statement?

[Christopher Devlin]

I totally agree that it's enabling legislation. It's a framework, and that's how it has been designed.

[Kyle Seeback, Conservative, Brampton West, ON]

And if you're doing that, you want to cover off as many possibilities as possible when you're setting out what you may regulate on. Would you agree with that statement?

[Christopher Devlin]

I've seen it done both ways. I've seen it done this way where you have a whole grab bag, as you're saying, or I've seen it left with almost nothing in there, and it's left to the Governor in Council to pass regulations and it's a wide open power. You can go either way.

[Kyle Seeback, Conservative, Brampton West, ON]

One thing I want to comment on is, a lot of people have come and said or sort of stated as a fact, for example, that this legislation will transfer the regulatory authority to the provinces, and that this bill will transfer liability to first nations.

When you look at the clauses, the clause clearly says “may”. It's one of the things that may come as a result of the consultation with first nations with respect to regulations. My view is that it's not necessarily accurate to say that this bill will do that. It would be more accurate to say that this bill may do that. Would you agree with me on that within a sort of statutory interpretation framework?

[Christopher Devlin]

Yes. We just don't know what it will do because it is framework legislation. What will happen is in large part dependent on the regulations that are drafted once the bill is in force.

[Kyle Seeback, Conservative, Brampton West, ON]

One of the things that the expert panel on safe drinking water for first nations did say is that one of the things you need to move forward with is a regulatory framework. Would you agree that a regulatory framework is one of the ways to move forward in ensuring safe drinking water?

[Christopher Devlin]

Oh, yes.

[Kyle Seeback, Conservative, Brampton West, ON]

In my view it's a necessary sort of precondition or first step. You set out what the regulatory framework is and then you would look at what the funding envelope would have to be to meet those regulations. That's the logical process for me.

Some people have agreed with me, and some people have disagreed. I'm happy to hear whether or not you want to join the bandwagon that's agreeing with me or jump on the one that's not.

[Christopher Devlin]

I don't think it's the bar's position to hop on any bandwagon.

We do mention in our letter to the committee that adequate resources have to be allocated. You've heard considerable testimony from other witnesses, and this is true of all infrastructure at municipal levels: at the end of the day you get what you pay for. If you don't pay for good roads, you get holes in the roads. If you don't pay for good water systems and adequate training, you get unsafe water systems.

Particularly when you're talking about municipal infrastructure, the resources have to be allocated. A lot will depend on how the bill is implemented. It's really hard to sort of look in a crystal ball, but in an ideal world there would be regulations that would be tailored very specifically to the specific circumstances of first nations, either individually or on feasible regional levels where, when you're looking at how water is delivered to a particular area, whether it's one first nation or a series of first nations, you would have regulations that would then match that particular context.

[Kyle Seeback, Conservative, Brampton West, ON]

But even if we get that—

[Christopher Devlin]

That has the potential to help begin to address some of the safe drinking water issues.