Safe Drinking Water for First Nations Act

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

This bill was last introduced in the 41st Parliament, 1st Session, which ended in September 2013.

Status

This bill has received Royal Assent and is now law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

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.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

June 10, 2013 Passed That the Bill be now read a third time and do pass.
June 6, 2013 Passed That, in relation to Bill S-8, An Act respecting the safety of drinking water on First Nation lands, not more than five further hours shall be allotted to the consideration of the third reading stage of the Bill; and that, at the expiry of the five hours provided for the consideration of the third reading stage of the said Bill, any proceedings before the House shall be interrupted, if required for the purpose of this Order, and, in turn, every question necessary for the disposal of the said stage of the Bill shall be put forthwith and successively, without further debate or amendment.
June 4, 2013 Passed That Bill S-8, An Act respecting the safety of drinking water on First Nation lands, {as amended}, be concurred in at report stage [with a further amendment/with further amendments].
May 8, 2013 Passed That the Bill be now read a second time and referred to the Standing Committee on Aboriginal Affairs and Northern Development.
May 8, 2013 Passed That this question be now put.
May 8, 2013 Passed That, in relation to Bill S-8, An Act respecting the safety of drinking water on First Nation lands, not more than one further sitting day shall be allotted to the consideration at second reading stage of the Bill; and That, 15 minutes before the expiry of the time provided for Government Orders on the day allotted to the consideration at second reading stage of the said Bill, any proceedings before the House shall be interrupted, if required for the purpose of this Order, and, in turn, every question necessary for the disposal of the said stage of the Bill shall be put forthwith and successively, without further debate or amendment.

Safe Drinking Water for First Nations ActGovernment Orders

November 22nd, 2012 / 1:40 p.m.
See context

Liberal

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.

Safe Drinking Water for First Nations ActGovernment Orders

November 22nd, 2012 / 1:40 p.m.
See context

NDP

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.

Safe Drinking Water for First Nations ActGovernment Orders

November 1st, 2012 / 3:15 p.m.
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Vancouver Island North B.C.

Conservative

John Duncan ConservativeMinister of Aboriginal Affairs and Northern Development

moved that Bill S-8, An Act respecting the safety of drinking water on First Nation lands, be read the second time and referred to a committee.

Mr. Speaker, today I am proud to speak in support Bill S-8, the safe drinking water for first nations act. This proposed legislation is an essential part of a larger collaborative strategy to ensure that residents of first nation communities can reliably access clean, safe drinking water, like all other Canadians.

Provinces and territories each have their own legally binding safe drinking water standards. These laws assign responsibility for the specific tasks and standards that protect the safety of drinking water, such as treatment and quality testing protocols. Under these laws, provincial, territorial and municipal authorities collaborate to ensure that residents have access to safe, clean and reliable drinking water. Regulations differ based on local circumstances, but the overall impact is the same, as regulations help establish a chain of accountability and quality control.

In contrast, there are currently no legally enforceable protections governing drinking water and waste water on first nation lands. With the exception of a small number of self-governing first nations that have established laws in this area, most residents of first nation communities do not benefit from the legal protections for safe drinking water that all Canadians expect and deserve.

Bill S-8 would directly address this gap by enabling the federal government to work with first nations on a region by region basis to create regulatory regimes to govern drinking water in first nation communities.

It is important to note that Bill S-8 is enabling legislation. Following passage of Bill S-8, the Government of Canada would work in close partnership with first nations and other stakeholders to develop federal regulations tailored to their unique regional circumstances.

The underlying principle of Bill S-8 is simple: all Canadians, regardless of where they live, should have access to safe drinking water. In other words, when it comes to drinking water, the law should offer the same level of protection to Canadians, whether they live on or off reserve.

I want to speak to the long and collaborative effort leading up to this bill, which our government initiated six years ago to correct this serious issue. In 2008 we introduced the first nation water and waste water action plan, which provided $330 million in water and waste water funding over two years for treatment facility construction and renovation, the operation and maintenance of facilities, and training of operators on reserve. We have since renewed this program twice, most recently in economic action plan 2012.

Between 2006 and 2014, our government will have invested approximately $3 billion in water and waste water infrastructure and related public health activities to support first nation communities in managing their water and waste water systems. Throughout the same time period, we have invested in over 130 major projects and funded maintenance and operating costs of over 1,200 water and waste water treatment projects. We also invest $10 million a year to support the training and certification of first nation water systems.

However, we do recognize that funding is not the only solution to ensuring safe drinking water and health and safety. That is why in 2009 we initiated a national assessment of first nations' water and waste water systems. This was the most rigorous, comprehensive and independent study of its kind ever conducted in Canada, surveying 97% of drinking water and waste water systems on first nation lands. Site visits to the 571 participating first nations began in September 2009 and concluded in November 2010. The assessment took more than 18 months and involved the inspection of approximately 4,000 drinking water and waste water systems. The results, released last year, provide a comprehensive summary of the situation, including the amount of investment required to address deficiencies and reduce risk. They provide Canada with an unprecedented reference tool that will inform future water and waste water initiatives. This is for priority setting, appropriately done.

One of the main problems identified by the assessment was the lack of crucial regulations pertaining to operations, maintenance and operator qualifications when it comes to drinking water on reserve. This is consistent with the message conveyed in 2011 in the report by the Auditor General, which identified the lack of a legislative framework for first nations drinking water as a major impediment to ensuring clean drinking water for first nation communities.

Over the course of the past six years, we have also heard from countless other organizations and from first nations members, as well as other key stakeholders, about their concerns related to safe drinking water on reserve.

In 2006, an independent panel, consisting of experts jointly appointed by our government and the Assembly of First Nations, travelled across Canada for a series of public meetings. It listened to more than 110 presentations and received and considered more than two dozen written submissions. The independent panel heard from a wide range of people, representatives of first nations, provincial, territorial and municipal authorities, as well as private sector organizations.

The panel's final report stands as a valuable contribution to the effort to improve drinking water quality in first nation communities. A key recommendation was the development of appropriate regulations.

The following year, the Senate standing committee held a separate series of hearings to investigate the matter. In May of 2007, it released a report that called similarly on the government to undertake a comprehensive consultation process with first nation communities and organizations to develop regulatory options.

Our government responded to these calls for action and at the beginning of 2009, after significant consultation with first nations technical experts and leaders across the country, we released a discussion paper that outlined a proposed solution that would allow for regional differences to be reflected in the development of future regulations to be developed in partnership with first nations following the passage of enabling legislation. This discussion paper served as the basis to develop the approach outlined in Bill S-8, namely legislation that provides for the establishment of regulations that reflect the diverse needs and realities of first nations across the country.

In early 2009, a series of 13 engagement sessions were held across Canada. During these sessions, representatives of first nations, provinces and territories discussed the proposed legislative framework and identified potential improvements. Our government also provided funding to first nation organizations so they could conduct regional impact analyses of the proposed legislative framework. To discuss specific regional issues, further meetings were held with first nation chiefs and organizations. The government maintained an open dialogue with first nations throughout this time, explaining the purpose of the legislation and responding to concerns.

After the 2011 federal election, government officials and representatives from my office met on a without prejudice basis with representatives of first nations to discuss issues of concern and to explore potential solutions, in particular with first nation organizations from Alberta and the Atlantic region.

I have personally met with chiefs at several key crossroads in the negotiations to maintain forward momentum. The direction given to ministerial and departmental staff involved in these discussions was based on establishing and maintaining a respectful and credible relationship.

The progress made during these sessions is reflected in the legislation now before us. The commitment and leadership demonstrated by first nation leaders to improve the legislation should be commended.

There are several key differences between Bill S-8 and its predecessor. First and foremost, Bill S-8 includes a non-derogation clause, developed in collaboration with the Alberta Assembly of Treaty Chiefs, that specifically addresses the relationship between the legislation and aboriginal and treaty rights under section 35 of the Constitution Act, 1982.

A preamble has also been added to describe this government's intention to develop regulations working with first nations. The proposed legislation also features new language to clarify several key points. In particular, the legislation would not automatically apply to first nations that are signatories to self-government agreements; regulations would not include the power to allocate water supplies or license users of water for any purpose other than for accessing drinking water; regulations on source water protection on first nation lands would be restricted so as to protect it from contamination; only the powers necessary to effectively regulate drinking water and waste water systems would be conferred on any person or body; and first nations would not be held liable for systems owned by third parties that are on first nations lands.

Bill S-8 was first introduced in the Senate in February of 2012, where it was subject to further scrutiny and review by the Standing Senate Committee on Aboriginal Peoples. During my testimony to the committee, I reiterated our government's intention to collaborate with first nations on the development of regulatory regimes.

As I described to committee members, we will work with first nations to ensure that the proposed regulatory regime will be rolled out in a phased approach over several years. Our government will work with first nations to develop regulations that would establish standards comparable to those that safeguard drinking water elsewhere in Canada. These regulations would come into force once communities have the capacity to adhere to them.

I also expressed the same commitment in a letter I sent to every first nation in Canada that would be subject to the legislation. A similar letter was sent to the chair of the Standing Senate Committee on Aboriginal Peoples. This government's intentions are clear. We want to ensure all Canadians have access to safe drinking water. This is a matter of health and safety.

Clearly, the passage of Bill S-8 would extend the collaborative effort that was launched more than six years ago. This effort has inspired steady progress on drinking water issues. It has followed a strategic step-by-step approach that has addressed all of the main factors that conspire to undermine access to safe drinking water in many first nation communities.

Training and certification programs have increased the number of qualified operators. Protocols and procedure manuals have been published and disseminated. Investments in infrastructure have upgraded dozens of treatment facilities. Plans are in place to strategically address the specific needs of other facilities.

Bill S-8 also serves as a clear demonstration of our government's commitment to strengthening the relationship between Canada and first nations through working in partnership to address issues of mutual concern. It proposes a process that would see first nations and government officials work together to design and implement appropriate regulations. Some first nations have already expressed their eagerness to work with the government to develop these regulations.

Back in November of 2011, the Liberal member for Toronto Centre put forward a motion calling on the government to improve first nations access to safe drinking water.

The House fully endorsed this motion. I hope that now my hon. colleagues opposite will honour their noble commitment to improving access to safe drinking water and back this very important legislation, which would go far beyond the words of that motion. On this side of the House, we are interested in more than passing motions. We are interested in concrete action. I hope the opposition will stand with the government as we move forward to take concrete action for first nation peoples.

Thousands of Canadians currently lack the legislative protection needed to safeguard the quality of their drinking water. Bill S-8 would not only ensure that this gap is closed but that it is done in close partnership with our first nations partners. I urge my hon. colleagues to endorse Bill S-8.

Safe Drinking Water for First Nations ActGovernment Orders

November 1st, 2012 / 3:30 p.m.
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NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Mr. Speaker, clearly the minister has indicated that when the original Bill S-11 was tabled, the government heard, loudly and clearly, that there were some deficiencies in the bill. Now Bill S-8 has come as a revised form, but there are still some gaps in that piece of legislation.

I have two specific questions for the minister. In the preamble, as he pointed out, the bill indicates that the departments have committed to working with first nations to develop proposals for regulations to be made under this act. There is nothing in the act that outlines what those working relationships might look like. In the past there has developed a level of mistrust because under the specific claims legislation, for example, there was a protocol agreement signed where there was a commitment to work with first nations. However, when one of the assistant deputy ministers came before the aboriginal affairs committee, she indicated that the commitment to working did not actually mean that they were going to engage in a process.

So would the minister make a commitment in this House today to define exactly what working with first nations, in the preamble, would look like? Could he also comment on the fact that what this act does is propose a process to develop regulations, which have no oversight in Parliament? How he would see Parliament having oversight of that regulatory process?

Safe Drinking Water for First Nations ActGovernment Orders

November 1st, 2012 / 3:30 p.m.
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Conservative

John Duncan Conservative Vancouver Island North, BC

Mr. Speaker, in my speech I outlined a long process to get to where we are today, and that process was loaded with consultation. When we had the committee hearings in the Senate, we had representation there that indicated very strongly that some of the first nations that were involved saw this as a model for how to develop first nations legislation. I intervened at a personal level when we had some difficulties with the original bill and we were trying to get to the current format of the bill, because this is a very loaded issue from the standpoint that it gets tied in with water allocation and with provincial issues. It becomes a very broad conversation, so we had to find a way to address all those concerns, and I believe we have achieved that.

Ongoing, I have made commitments in writing, at the committee and in every other way that the consultation process on the regulations will continue and that we will not move faster than the capacity development of the first nations in terms of operator certification and their ability to have things in place prior to any enforcement of the regulations.

Safe Drinking Water for First Nations ActGovernment Orders

November 1st, 2012 / 3:35 p.m.
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Kenora Ontario

Conservative

Greg Rickford ConservativeParliamentary Secretary to the Minister of Aboriginal Affairs and Northern Development

Mr. Speaker, I first want to thank the minister for his leadership on this file and acknowledging that we needed to do a thorough engagement process, one that had never been done before, not in the size or scope of any legislation, certainly not from my perspective after almost two decades of living in the north and seeing the extent to which we performed our consultations to develop the framework he was explaining.

I would like to ask him if he could explain a little more the thorough engagement process that has occurred between the Government of Canada and first nations. Are there technical experts involved? Did community members get a chance to speak about these really important issues before our framework or pathway was established?

Safe Drinking Water for First Nations ActGovernment Orders

November 1st, 2012 / 3:35 p.m.
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Conservative

John Duncan Conservative Vancouver Island North, BC

Mr. Speaker, we have had a long period of consultation on this bill. There has been much input from technical experts, community members, people who inform the leadership and their legal counsel. This was unprecedented consultation, in my view. I am not aware of any other piece of legislation in this place that has taken that length of time in a collaborative fashion to get to final form. I believe we are currently looking at a bill that is about as good as it can get.

Safe Drinking Water for First Nations ActGovernment Orders

November 1st, 2012 / 3:35 p.m.
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Liberal

Carolyn Bennett Liberal St. Paul's, ON

Mr. Speaker, the Expert Panel on Safe Drinking Water for First Nations said it is clear that it is not credible to go forward with any regulatory regime without adequate capacity to satisfy the regulatory requirements. The government's own estimates identify a $5.8 billion shortfall to deal with the first nations waste and waste water capacity gap.

We thank the minister and his government for voting for the opposition day motion by the member for Toronto Centre, but I would like to ask the minister whether we can anticipate in the upcoming 2013 budget the amount of money that would be required to meet the objectives of this bill. When, in a long-term strategy, could 100% of first nations homes in 100% of first nations communities be expected to have safe drinking water?

Safe Drinking Water for First Nations ActGovernment Orders

November 1st, 2012 / 3:35 p.m.
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Conservative

John Duncan Conservative Vancouver Island North, BC

Mr. Speaker, it is our intent to move as quickly as possible on all of this infrastructure, certification and operator training question, because this is a health and safety issue. We have discovered, with our serious investments to date, that the national assessment set some pretty good priorities. I can say that when I was here for 13 years in opposition, we used to hear horror stories about water systems on first nation reserves over and over again, and now we have addressed many of those.

We have also moved forward from the standpoint that, because we have made those investments, we have learned a lot and there are new and more cost-effective technologies. We have a circuit rider training program in place; we have increased the percentage of the systems that have fully certified operators, both for water and waste water systems; and we have told the communities that we do not expect full compliance on anything until such time as the infrastructure and all the certifications are in place. That is all very positive.

Safe Drinking Water for First Nations ActGovernment Orders

November 1st, 2012 / 3:40 p.m.
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NDP

Kennedy Stewart NDP Burnaby—Douglas, BC

Mr. Speaker, I have great concerns about the water quality on reserves in British Columbia. I know there are a number of pipeline projects that are slated to go through reserves in B.C. In particular, the Kinder Morgan company wants to run a new pipeline through 15 first nations reserves. When asked, the head of the National Energy Board said it would expropriate land on these reserves and put these pipelines through without the consent of first nations.

I am wondering if the minister can say whether he would allow that to happen in these reserves in British Columbia.

Safe Drinking Water for First Nations ActGovernment Orders

November 1st, 2012 / 3:40 p.m.
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Conservative

John Duncan Conservative Vancouver Island North, BC

Mr. Speaker, I certainly was not expecting that question on this bill. I am not aware of those statements. This is part of an environmental assessment process we have not even come to yet with Kinder Morgan. Therefore, that is an inappropriate question and it would be inappropriate for me to respond at this time.

Safe Drinking Water for First Nations ActGovernment Orders

November 1st, 2012 / 3:40 p.m.
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NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Mr. Speaker, I rise to speak to Bill S-8, An Act respecting the safety of drinking water on First Nation lands. I am going to start differently than I planned because I want to respond to something that both the minister and the parliamentary secretary addressed in their speeches or their questions.

I want to start with a quote from the UN Declaration on the Rights of Indigenous People. Article 18 says:

Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decisionmaking institutions.

Article 19 says:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

It was interesting to hear people describe the consultation process as engagement. It is an interesting twist of words, because when we talk about full, prior and informed consent, I am sure that many nations would argue that engagement does not equal full, prior and informed consent. I want to turn for a moment to some comments about the engagement or so-called consultation process.

The Safe Drinking Water Foundation, in a position statement it issued on April 14, 2009, talked about this engagement process. It said that few first nations voices were heard at the engagement sessions, but enough were present that INAC was able to claim that they were engaged. It said that many first nations in Manitoba, Saskatchewan and Alberta did not receive their engagement session invitation packages in sufficient time for people to attend the sessions. For example, George Gordon First Nation received its package on January 25 at noon when the engagement session was taking place the following day in Saskatoon, three hours away. Of course, we know what winter road conditions can be like in Canada at that time of year, so it adds an additional stress.

In addition, the Safe Drinking Water Foundation said that civil servants dominated conversations in each discussion group, offered incomplete and inaccurate information and failed to relay first nations' concerns to the larger audience. The INAC official report omitted all of that.

Consultation is all in the eye of the beholder. There are some guidelines that first nations have proposed in terms of what meaningful consultation would look like. I have been hearing from people who do not feel this process fulfilled that responsibility to consult.

I want to turn to the legislative summary of the safe drinking water first nations act that was put out by the Parliamentary Library so that people understand what it is we are talking about today. In the legislative summary it says:

The bill provides for the development of federal regulations governing the provision of drinking water, water quality standards and the disposal of waste water in First Nations communities...the bill also establishes that federal regulations developed in this regard may incorporate, by reference, provincial regulations governing drinking water and waste water in First Nations communities.

It goes on to say:

The delivery of safe drinking water to on-reserve First Nations communities is critical to the health and safety of the communities’ residents. Access to safe, clean, potable water is also closely tied to the economic viability of individual communities. For more than a decade, research has indicated that many First Nations communities lack adequate access to safe drinking water. A 2001–2002 assessment found that the quality of almost three quarters of drinking water systems in First Nations’ communities were at significant risk.

I know some of those numbers have changed since then and I will talk about the waste water and drinking water assessments that the government commissioned.

Later on in the legislative summary it indicated some key challenges. It says:

In addition to the absence of a regulatory framework and the lack of clarity regarding roles and responsibilities...core issues relating to the provision of safe drinking water on reserves include the high costs of equipment for, and construction and maintenance of, facilities in remote locations; infrastructure that is either obsolete, entirely absent or of low quality; limited local capacity and ability to retain qualified or certified operators; and the lack of resources to properly fund water and waste water system operation and maintenance.

All of us in the House would agree that there are significant challenges on first nation reserves about access to safe quality drinking water and to the functioning of the waste water treatment systems.

In my own riding of Nanaimo—Cowichan there is the St'át'imc reserve which butts up against the municipality of Nanaimo. We literally have a reserve that is in an urban area and there has just recently been an agreement to allow the extension of the water system, but the reserve has been there for decades.

The ability of the residents to engage in economic development on their recognized traditional lands has been hampered by the fact that they do not have access to clean water. In fact, on one of the reserves they are trekking in water. This is a reserve right beside the city of Nanaimo. We are not talking about some remote reserve hundreds of miles away that is accessible by air only, or ice road, or sealift.

Therefore, this is not just a rural and remote community problem. There are reserves close to urban areas that do not have the infrastructure to not only supply safe drinking water, but to enable them to engage in the economy in a more meaningful way.

Back in 2005, the report of the Commissioner of the Environment and Sustainable Development also highlighted the problem of drinking water for first nation communities. I want to touch on a couple of points here.

The report noted that when it came to the safety of drinking water:

—residents of First Nations communities do not benefit from a level of protection comparable to that of people who live off reserves.

It goes on to say that:

Despite the hundreds of millions in federal funds invested, a significant proportion of drinking water systems in first nation communities continue to deliver drinking water whose quality or safety is at risk. Although access to drinking water has improved, the design, construction, operation, and maintenance of many water systems is still deficient. Moreover, to a significant extent, the success of the First Nations Water Management Strategy depends on INAC and Health Canada addressing the management weaknesses we have noted.

The report talks about a number of management weaknesses between the departments. It goes on to say:

The technical help available to First Nations to support and develop their capacity to deliver safe drinking water is fragmented. Given that most First Nations communities have fewer than 500 residents, and that providing drinking water has become more complex, the development of institutions that can provide ongoing technical support is critical to a continuing supply of safe drinking water for these communities.

In part, many first nation communities have relied on tribal councils to help them with technical advice and organizational administration. In the last round of budget cuts, we saw tribal councils had their funding cut. That is going to significantly impact on some of these smaller communities' ability to deal with some of these very complex issues.

The report, “Drinking Water on First Nations Communities” also highlighted some challenges . It is important to state this because it is a very complex problem. It says about location:

Many First Nations are located on the Canadian Shield, or other difficult terrain, making it technically difficult and costly to provide water services. Some reserves are isolated and can be accessed by roads only in winter; some have limited access to electricity or other forms of energy. Water sources are often located off reserves, and it is difficult for First Nations to protect them.

Interestingly, on the difficulty of protecting water, we have just seen a number of waterways no longer included in the Navigable Waters Protection Act. Many of those waterways on first nation reserves are no longer protected. Did the department do an analysis of what this change in the Navigable Waters Protection Act would have in the context of this legislation? I understand from a briefing from government officials that it has not been done.

It is a very important question. If first nations cannot protect their waters by whatever means available to them, one questions how they would improve the quality of the drinking water.

Other challenges include accountability. The report says:

Federal departments set requirements that make First Nations responsible for providing day-to-day drinking water. It is not clear who is ultimately accountable for the safety of drinking water.

Costs and financing...It is difficult to find and retain operators.

Technical standards. It is not clear which standards are applicable. Provincial guidelines and regulations on drinking water are to be applied except when less stringent than federal standards.

The population growth on reserves has been noted in report after report. This report says that:

On-reserve population is estimated to increase by 230,000 people between 2004 and 2021. It is difficult to estimate population growth and economic development in each community to plan water systems that can meet drinking water needs for 10 to 20 years.

It is a very challenging environment that we are operating in.

In the Report of the Expert Panel on Safe Drinking Water for First Nations, there was a number of matters that it highlighted.

First, it states:

Pursuing “laws of general application” is too uncertain

If it could be established that provincial laws of general application applied to Indian reserves, legal frameworks would be instantly in place and a great deal of consultative and Parliamentary process avoided. However, in the view of legal counsel to the panel, applying provincial drinking water and wastewater law as a law of general application is “fraught with such uncertainty that it is neither a viable nor effective option.”

We know that provincial laws differ from province to province so there will be a very uneven level of water quality standards from province to province, depending on which province the first nation resides.

It report says that before there is any legislation that there are preconditions that must be in place before legislation moves forward. The first is, “Provide resources, discuss and deal with high risks”. It says:

The federal government must close the resource gap

First, and most critically, it is not credible to go forward with any regulatory regime without adequate capacity to satisfy the regulatory requirements. While it is tempting to assume that putting a regulatory regime in place would reduce the dangers associated with water systems, exactly the opposite might happen. This is because creating and enforcing a regulatory regime would take time, attention and money that might be better invested in systems, operators, management and governance.

But the problem is more fundamental than the resources that would be lost to creating a regulatory regime. The underlying issue is that the federal government has never provided adequate funding to meet the 1977 policy commitment of comparable facilities on reserve....If funding were supplemented to cover only the costs of a regulatory regime, the gap would continue.

We therefore see it as a precondition to moving forward on any of the viable options that the federal government must finally close the resource gap. It must provide, over a reasonable period, the funding needed to ensure that the quality of First Nations water and wastewater is at least as good as that in similar communities and that systems are properly run and maintained.

That is a precondition.

It also goes on to say that discussion with first nations is essential. It says:

The second precondition is the need for the federal government to assess whether it has a legal duty to consult with First Nations affected by any of the three options. This duty, according to the Supreme Court arises “when the Crown has knowledge, real or constructive, of the potential existence of the aboriginal right or title and contemplates conduct that might adversely affect it.”

As the minister pointed out, it indicates in the preamble that it will work with first nations, but nowhere is that working relationship defined. Because of the ongoing mistrust with the government, that relationship needs to be clearly spelled out about how first nations will be consulted, not just engaged, in the development of these regulations, as we saw from other consultative processes.

I spoke this morning to Bill S-2 about the so-called consultative process that was conducted with matrimonial real property. Wendy Grant-John tabled a very thorough report and many of the critical recommendations were disregarded when Bill S-2 was brought forward. Therefore, not only must the consultation process be outlined and resources attached to it, but there must be a commitment that when that consultation process is completed, the recommendations that come forward be actually incorporated into the regulations.

Finally, one of the other preconditions was, “Deal with high-risk communities immediately”. It says:

—any of the options would take time – probably several years – to reach the ultimate goal of safer drinking water for all First Nations. In the meantime, however, many reserve residents face serious risks from the drinking water available to them, sometimes from collective systems but...often from individual wells or other water sources.

It talks about the fact that we cannot just wait for the regulations to be developed or legislation to move forward. Rather we have to actually deal with the high-risk systems.

I want to touch briefly on the National Assessment of First Nations Water and Wastewater Systems. As I indicated earlier, in early 2000 a significant number of wastewater systems and water quality systems were at risk. That number has come down. I will give the government credit to the extent to which it has invested money over the years, so the numbers have reduced, but we know it has not been enough.

To provide a couple of really important numbers on this, nationally 571 of the 587 first nations, 97%, participated in the National Assessment of First Nations Water and Wastewater Systems study. That is important.

It says that “12 First Nations have no active infrastructure on reserve lands, in some cases [this was] as a result of recent or ongoing land claim settlements”.

Under the heading “Individual Systems”, the document states that “[a]n assessment was completed for approximately 5% of the individual well and septic systems”. Some of these numbers are still staggering. It goes on to say:

36% of the individual wells sampled did not meet the requirements of the GCDWQ for a health related parameter (i.e. arsenic, barium, bacteriological, etc.) and 75% did not meet the GCDWQ for an aesthetic parameter (i.e. hardness, sodium, iron, manganese, etc.). Approximately 47% of the septic systems assessed had operational concerns identified, which were usually attributed to limited maintenance (not pumping out septic tank regularly), leaching beds installed in inappropriate soils and age....

It then states, “A risk assessment has been completed for each water and wastewater system according to the INAC Risk Level Evaluation Guidelines”. Overall, of the 807 water systems inspected, 39% were categorized as high overall risk, 34% were categorized as medium overall risk and 27% were categorized as low overall risk. Therefore, 73% of the systems have some level of risk.

There have been some improvements. We know the number of boil-water advisories has decreased. However, there are still significant problems with the water systems.

That leads me to a comment that I made earlier around the need to invest in the capacity for these water systems for first nations. Later on in the report, it did indicate:

Small water systems are generally found to have a higher risk rating than larger water systems. In many cases, these small facilities were not designed to meet current protocols and do not have the same level of resources available for operation as larger systems. In addition, the overall risk of a system appears to increase with remoteness.

Of the high risk systems, 150 systems serving 16% of the on-reserve population are flagged as high risk as a result of a bacteriological exceedance.

Of the 532 waste water systems inspected, 14% were categorized as high overall risk and 51% were categorized as medium overall risk. Again, what we are seeing is that there continues to be significant risk attached to both the water quality and to the waste water systems.

The report also made an estimate about what was required to upgrade to meet the protocol. The report said, “The total estimated construction cost to meet protocol is $1.08 billion”. That is a lot of money. However, we are talking about people's health and safety. It says:

[These] requirements...are considered to be related to health and safety, providing minimum levels of treatment, providing firm capacity, standby power and best management practices.

Members can see that the scope and the magnitude of the problem are very serious.

Groundwater is an important source and in a paper that was put forward by Sarah Morales, a submission to Expert Panel on Safe Drinking Water, she pointed out that it is estimated that 750,000 people in British Columbia, and this is not just first nations, rely on groundwater as their drinking source. She said that protection of this drinking water source had become a major issue in British Columbia where the aquifers, underground sources of water, and so on, were at risk. She also said that the bacteriological contamination of private domestic wells was an issue across the province.

Members can see how important it is for whatever regulation or legislation we put in place to be effective in terms of dealing with water quality. It is also important that first nations have the resources they require to construct and maintain, and to train their operators, and that there is a meaningful consultation in the development of these regulations.

Based on what we have before us, unless there is some serious amendment to this piece of legislation, New Democrats will not be able to support it.

Safe Drinking Water for First Nations ActGovernment Orders

November 1st, 2012 / 4 p.m.
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Conservative

David Wilks Conservative Kootenay—Columbia, BC

Mr. Speaker, during the member's speech she referred to the capacity on first nations with regard to water and waste water. There was some inference that depending on the size of the capacity of the water or waste water system, it would determine how well that water or waste water could be treated.

The member is well aware that the capacity of water and waste water is not based upon how good the system is, but upon how good the system was that was put in. Would she agree that most waste water systems that are put in first nations communities today are to the same standard as anywhere else in Canada and that not one is substandard?

Safe Drinking Water for First Nations ActGovernment Orders

November 1st, 2012 / 4 p.m.
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NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Mr. Speaker, that is an interesting question. There has been a great deal of discussion about the systems that have been installed in various communities. I am sorry if the member thought I was implying there were substandard systems installed. I was not implying that. The challenge is that sometimes systems are installed that are not actually appropriate for the size of the community. There are different kinds of systems.

In one community I visited, a very sophisticated system had been installed that was inappropriate for the size of the community. There was a huge cost to the community to operate that system in terms of chemicals, the operator training that was required and whatnot. It was not that it was a substandard system. It was a system that was inappropriate for that community.

The bigger challenge is that there are significant numbers of communities at risk, either because they do not have the training that is required or there is not appropriate monitoring. Sometimes there are well systems, whether community wells or individual wells, and there are some questions about the kinds of monitoring that goes on. If some of these wells fail, communities cannot afford to replace them.

In one of the communities I visited, the wells were all contaminated and the community is currently having to truck in water. It is more about whether the resources are available to operate, maintain and construct new facilities as appropriate.

Safe Drinking Water for First Nations ActGovernment Orders

November 1st, 2012 / 4 p.m.
See context

NDP

Chris Charlton NDP Hamilton Mountain, ON

Mr. Speaker, I want to commend my colleague on an excellent speech this afternoon. She has much more expertise in this area than I do and I hope she will forgive me.

I have a hard time believing the minister because he has such a long record of broken promises. Members will know that water is an internationally recognized human right. We have also made commitments to the rights of indigenous people, but the Conservative government still continues to ignore the rights of Canada's first nation communities.

A study commissioned by this very government found that an investment of $5 billion over 10 years is needed with an immediate investment of $1.2 billion. However, we are seeing in the bill that the government has ignored the recommendation from the Assembly of First Nations dealing with safe drinking water and is still advocating for incorporation by reference of provincial laws, effectively placing much of the responsibility with the provinces.

I have to ask myself what we are doing here. How much is this going to cost the provinces? We know the federal government is not coming to the table to pony up. I wonder if my colleague would elaborate on what this means for provinces such as hers, British Columbia, and provinces right across the country.