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.

Safe Drinking Water for First Nations Act

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, I would like to thank the member for her speech.

I would like to hear her opinion on the lack of access to drinking water on reserve. How does it affect people's health and education? When I say education, I am not talking about how parents raise their children, but about the education these children are getting in school. If they do not have enough drinking water, it cannot be very pleasant to go to school.

I would like to know what is happening to aboriginal people across the country who are in a similar situation, meaning, who are dealing with a lack of water or who have undrinkable water.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, I would like to thank my colleague for her question. I really appreciate that the NDP is so engaged in this issue.

I can talk about the problems related to a lack of drinking water. Tuberculosis is more common among first nations who do not have a reliable source of drinking water. There are a variety of health problems related to this issue. It also creates a significant problem in the community's ability to diversify and build a strong economy. It is difficult to encourage industry to come to the community if there is no infrastructure. Drinking water is a necessity.

We also heard about municipalities that have first nations reserves connected to their water supply. That is very problematic because, in the context of this bill, the government did not take the time to consult either first nations or the municipalities that have to provide this service.

I think that we will find there are municipalities that are not interested in providing that service to first nations. Good relations could have developed in those instances.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Mr. Speaker, I thank my colleague for her excellent presentation on a fundamental and crucial issue.

I wanted to ask a more legal and specific question. I know that the member for Manicouagan will talk to us about this shortly.

In December 2011, the Assembly of First Nations adopted a resolution that called on the government to guarantee that appropriate funding be available for any regulations governing implementation, to support first nations in the process of developing their own water supply systems, and to work together with the AFN to develop an immediate plan to address the lack of clean and safe water.

I do not know if I am the only one, but does my colleague also have the impression that we are just scratching the surface of the problem, and that the bill is a half measure?

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, I will be very brief.

The first nations that appeared before the committee said that they could put in place a good system to help their communities if they had the necessary means and resources. We can help communities access clean drinking water by giving them the means and the resources they need, not by introducing bills such as this.

[The Acting Speaker, Bruce Stanton]

Before I recognize the hon. member for Manicouagan, I want to inform him we have just four minutes remaining. He will have more time when the House resumes debate.

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

Mr. Speaker, I had a very quick look at my recent speeches in the House, and I noticed a common underlying thread in a large number of bills introduced in the House. I have already made at least three speeches this week that touched on the same subjects, the same common thread and the same trains of thought.

At the risk of being redundant, I want to point out that the government is gradually and stealthily trying to distance itself and step back from its obligations. This is evident with the introduction of both private members' and government bills that allow the government to gradually transfer its obligations to provide services to Canadians across the country. For example, it is delegating its obligation to deliver services to charities, which are not accountable. Bill S-8 is no different.

When I consider my brief experience here in the House and the many hours I have spent in committee, I come to the same conclusion. In reality, many initiatives that focus on “Indianness” and aboriginal issues seek to allow the government to opt out of its obligations and shift the burden it has because of the fiduciary relationship, among other things, onto the backs of third parties or band councils.

This relates to Bill S-8, which pertains to safe drinking water. I am thinking, in particular, of the First Nations Land Management Act. This initiative was brought forward to, ultimately, technically and officially, give first nations communities back a certain amount of control over land management and authorizations related to partial occupancy.

In reality, if a legal expert truly focused on the enactment and the letter of this law, he would clearly see that the burden shifts the moment an agreement is signed under the First Nations Land Management Act. The environmental liabilities—past, present and future—are then assumed by the band.

As a result, all the profiteering and negligence of successive governments over the years in relation to environmental monitoring, management and assessments just add to the negligence we are seeing in 2013. The results could be catastrophic. That is why the government is trying to opt out of these obligations. It is important to remember that the reclamation of a single parcel of land on a given reserve can easily cost $100,000. It depends on whether we are dealing with oil or other pollutants and contaminants.

The same reasoning applies in the case of Bill S-8. The government is simply shifting its obligations with regard to access to safe drinking water, infrastructure upgrades and water management and filtration onto the backs of first nations and band councils, which do not have enough funding to take on these sometimes costly responsibilities. I am just thinking about my community, which recently had to deal with contaminated water. There are huge costs associated with these types of problems.

An informed review of the proposed legislative initiative indicates that there are non-derogation clauses whose interpretation and application would open the door to the abrogation of ancestral and treaty rights.

[The Acting Speaker, Bruce Stanton]

The hon. member for Manicouagan will have six minutes when the House resumes debate on the motion.

The hon. member for Peace River is rising on a point of order.

The House resumed consideration of the motion that Bill S-8, An Act respecting the safety of drinking water on First Nation lands, be read the third time and passed.

[The Acting Speaker, Barry Devolin]

Resuming debate. The hon. member for Manicouagan has six minutes remaining.

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

Mr. Speaker, I will continue my speech.

We were talking about the Canadian government's desire to distance itself from highly contentious issues, such as the provision of services to Canadians, and also matters pertaining to drinking water and the upgrading of drinking water infrastructure.

That is why these clauses have been added and why a trend is emerging from this initiative and many others as well. We see that it is fragmented. The Canadian government is trying to gradually distance itself from highly contentious issues on which the national and international media have shone a rather unfavourable spotlight.

However, first and foremost, with respect to the provision of services to Canadians, we have seen that the government's priorities are clearly focused on natural resource extraction. In keeping with what my hon. colleague said, the government is pandering to its political base. That is why there will be cherry-picking and certain issues will be given priority in the Conservatives' hidden agenda.

Now, with regard to Bill S-8, the government is adding phrases such as “to the extent necessary to ensure the safety of drinking water on First Nation lands”. This type of phrase opens the door to the unilateral violation of aboriginal rights. That is extremely shameful and questionable. We know that aboriginal, treaty and other rights exercised by aboriginal peoples in Canada are enshrined in the Constitution. The fiduciary relationship also comes into play. Simply put, a fiduciary relationship necessarily implies that the first nations' interests will be the Canadian government's primary concern when it introduces legislation or plans to impose unilateral measures, such as those before the House.

This is enshrined in the Constitution and has been reiterated by the courts, including the Supreme Court. Once the Supreme Court has taken a position on a specific case, it becomes immutable. In this case, the Supreme Court indicated that these obligations were associated with every initiative that could potentially interfere with the traditional and modern way of life of first nations peoples.

As a result, the moment the government considers or makes a decision, whether it is based on policy or what is actually happening on the ground, before doing anything to implement that decision, it must ensure that the decision does not in any way interfere with the traditional activities and way of life of Canada's aboriginal peoples. Therein lies the problem in most cases. The government is generally reluctant to hold consultations and seek public approval because it is a lot of work. What is more, we know that when public consultations are held, there is a good chance that people will not agree and that they will be fairly vocal about it. People will openly express their opinions. That is the concept behind direct democracy: the public is called upon to take a stand.

As the hon. member for Abitibi—Baie-James—Nunavik—Eeyou mentioned, when people are consulted, there is the possibility that they will not agree with what is being proposed. That is always one of the options that a person has. That person can simply say no and reject the measure that is being proposed, and that is a valid response.

Social acceptability often appears to be the desired outcome, because it confers prestige. This is not nearly as meaningful in 2013. It has been tarnished and taken over by industry. I would say that social acceptability is rather abstract and not something that ought to be pursued. It may well be that there is simply no acceptability and that people take a position against certain projects.

The Supreme Court clearly established that any infringement of aboriginal prerogatives must be seen in light of the methods preferred by aboriginal peoples to exercise their rights. It must also take into consideration the need to avoid any infringement of aboriginal rights to the greatest extent possible. There is nothing exhaustive about this list. I am just briefly listing a number of criteria. It also needs to include fair compensation in the event of expropriation and, lastly, it necessarily implies that there be consultations.

As I just mentioned, the issue of consultations is the sticking point in 2013. In the case of most, if not all of the statutes and legislative tools brought to my attention over the past two years I have sat in the House, the government has shown little desire to consult the aboriginal population in general.

The government seems content to have asked nine community leaders for their opinion. Turning to the 3,000 members of a community and being prepared to brave the storm is not exactly at the top of the Conservatives’ agenda in 2013. This is understandable, because public support is not necessarily in the cards. Some Conservative members have even been stopped from going into a Tim Hortons for a coffee in their own riding because the locals want to tear off their heads.

In short, the social and political conditions are not right for their policies, their approach and the directives coming from their backbench MPs.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Speaker, I would like to thank my colleague from Manicouagan for his speech.

People always feel threatened by his razor-sharp mind. I found his perspective very interesting and would like to make a daring comparison. I hope he will forgive me.

As a result of my experience to date as a member of the Standing Committee on Finance, I have detected a general trend, which is not exclusive to the Conservative government, towards offloading more and more responsibilities on putative grounds of economic realism and the need for budget cuts. This means that such responsibilities are transferred to other levels of government that could be described as lower.

As I was listening to my colleague’s speech, I was thinking that this was clearly one of the consequences, and that it was probably based on similar considerations. I would like to know what he thinks of it.

Is the federal government generally attempting to shirk its responsibilities?

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

Mr. Speaker, I thank my colleague for his question. I would go even further and say that they are trying to unburden themselves by shifting responsibility to organizations that are not accountable.

Often, the common thread binding some of these issues is that they are more or less contentious or controversial. That is why the government is attempting to distance itself and to cut ties to avoid being accountable for the negative impacts of its sometimes unreasonable decisions.

The most recent trend—which I have observed of late—is to transfer everything to NPOs or charitable organizations because it is rather difficult to point fingers at a charitable organization and say that it has made a hash of managing a project. By definition, an NPO is a non-profit organization.

In short, public policy implementation is now being delegated blindly. We need to condemn this approach.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Speaker, I would like to comment on something else that my colleague discussed.

I would like to suggest the following, because it would be the most promising and productive avenue for the future. I am talking about dialogue, the exercise of democracy, discussions and negotiations.

The federal government has frequently failed to broaden a number of debates. There are other examples as well of contentious issues across Canada. Some such issues are settled with some groups at the expense of others, without getting the latter involved.

Because my colleague raised this issue, I would like to ask whether he believes that the preliminary negotiations and dialogue in connection with this bill have at least been adequate?

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

Mr. speaker, I thank my colleague once again for his question.

I am going to support my own views with facts. Once again this morning in committee, we were talking about signing a treaty that would exclude a nation in British Columbia, specifically the Sto:lo. There is a dispute over salmon and land.

I would say that Machiavellianism is still alive and well here in Canada's Parliament. This is unfortunate, but true. Aboriginal communities have an oral tradition, and have had for tens of thousands of years; everything is based on brotherly exchanges and on “emulatory” principles in accordance with which people tell the truth.

In 2013, the Conservatives and other governments before them—the blame must be placed on a single organization—successfully worked to divide and ensure that aboriginal bands, Indian bands, had disparities and claims that would ultimately bring them into conflict with one another. This mutual dislike was nurtured because it is much more profitable for some people to work with certain bands as individuals rather than as a part of a whole. When I give my own presentations and travel to reserves, I say that the solution and the future of aboriginal peoples reside in unity and a return to the values and oral cultures with which we grew up.

That is what I wanted to submit to the House.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Mr. Speaker, I will be sharing my time with the member for Edmonton—Leduc.

Mr. Speaker, I am thankful for the opportunity to explain to the opposition, and to Canadians, why I support Bill S-8, the safe drinking water for first nations act, and why I urge my hon. colleagues to stop voting against a bill that would give first nations access to safe drinking water.

The solution at the heart of Bill S-8 is the product of more than seven years of engagement and discussion with a wide range of groups, including first nations, provinces, municipalities, parliamentary committees and organizations devoted to the science of drinking water.

Perhaps the best way to fully appreciate the considerable value of Bill S-8 is to trace its evolution.

In March 2006, our government, working with the Assembly of First Nations, announced the joint plan of action for drinking water in first nation communities. Among the five points in the plan of action was the development of an appropriate regulatory framework.

To help identify what the framework should consist of, the plan called for a panel of experts to be chosen by government and first nations officials. The expert panel held a series of hearings across Canada, in 9 locations in all, to hear from a total of 110 representatives from first nation communities, as well as other stakeholder groups. The panel also received and considered more than two dozen written submissions, most of them prepared by first nation communities and organizations. In its final report, the panel examined three regulatory options and provided valuable advice on the advantages and the disadvantages of each one.

The next step in Bill S-8's evolution occurred in 2009, when the Government of Canada held a series of engagement sessions with first nation groups. The sessions began in Whitehorse, Yukon, and continued in 12 other cities. The 13 engagement sessions attracted more than 500 participants representing first nations.

It is important to note that while work on a regulatory framework continued, our government continued to live up to the commitments it had made through the plan of action. Progress reports were tabled in Parliament, for instance, and budget 2008 invested approximately $330 million, over two years, in projects to improve drinking water in first nation communities. Budget 2009 included an additional $165 million per year, over two years, for first nation water and waste water infrastructure projects.

Our government is also committed to expanding the circuit rider training program and funding a national assessment of first nation water and waste water systems.

In 2010, the government introduced Bill S-11. A standing committee in the Senate held a series of hearings to review the proposed legislation and heard from 40 individual witnesses. Now, although this version of the bill died on the order paper in the initial review, it identified a number of challenges that have since been addressed.

In the interim, government officials continued to discuss regulatory options with first nation groups. Of particular note were the without prejudice discussions with regional first nation organizations across the country. It was during these without prejudice discussions that the first nations proposed a non-derogation clause that would resolve what was perceived to be a major problem with the previous version of Bill S-8. The problem involves the relationship between federal legislation and the constitutional rights of first nations.

The proposed clause would not prevent the government from justifying a derogation or abrogation of aboriginal or treaty rights if it were necessary to ensure the safety of first nations' drinking water.

A second significant development came in the summer of 2011 when our government published the national assessment of first nations water and waste water systems. I am proud to say that this was the most comprehensive examination of first nation water and waste water infrastructure in history.

This report shed a new light on the larger issues at play. The report found that many water systems in first nations communities had a high risk of failure to produce safe water if a problem were to arise. The report identified a need for clear guidelines and recommended the establishment of a regulatory framework for water and waste waster systems. This provided additional momentum to move ahead with the practical solutions.

Last year we introduced Bill S-8, a stronger version of its predecessor. There are several improvements worth noting, such as that the preamble in the proposed legislation explicitly states the government's intention to improve the health and safety of first nations and to work with first nations to develop drinking water regulations.

The new version includes a non-derogation clause that clearly addresses the relationship between the legislation and aboriginal and treaty rights under section 35 of the Constitution Act, 1982.

Clause 4.(1)(b) of the new version clarifies that any regulation on source water protection on first nation lands would be restricted so as to protect it from contamination.

The new version also clarifies that regulations could not include the power to allocate water supplies or to license users of water for any purpose other than for accessing drinking water.

There is new language to clarify that the regulations could confer to any person or body only the powers necessary to effectively regulate drinking water and waste water systems. Wording that was perceived to negate first nations authority over water on their lands has been deleted.

Another part of the previous version that has been removed is language that could be interpreted as powers to compel first nations into an agreement with third parties to manage water and the waste water on first nations lands.

Finally, Bill S-8 also features language to clarify that first nations would not be held liable for systems owned by third parties that are on first nations lands.

There have been many changes to this legislation since its last iteration in order to address the concerns raised by first nations, parliamentarians and other stakeholders. In fact, these changes respond directly to the concerns raised by first nations groups.

Moreover, the Minister of Aboriginal Affairs and Northern Development recommended an amendment to the Standing Committee on Aboriginal Affairs and Northern Development that further addresses concerns raised by first nations to remove the opt-in provision from the bill, demonstrating that our government is listening to first nations concerns and working to address them. I am pleased to see that the hard-working members of the Standing Committee on Aboriginal Affairs and Northern Development agreed by removing this from the bill.

The proposed legislation now before the House has been informed by a comprehensive process of consultation, review and improvement.

Bill S-8 proposes an effective solution to a problem that continues to threaten the health and safety of residents of first nations communities. I hope that the opposition can recognize the urgent health and safety issues at stake here and support Bill S-8.