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

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, my understanding is, and this is again from the national assessment of first nations report, that:

A risk assessment has been completed for each water and wastewater system according to the INAC Risk Level Evaluation Guidelines.

My understanding is that they used the INAC not the provincial guidelines.

With regard to infrastructure, what the risk assessment did identify was that there were still serious infrastructure deficits in the country. The bill before us, and as I pointed out the Senate could not tie money into the bill, has no commitment going forward for the water and waste water systems .

The National Assessment of First Nations Water and Wastewater Systems, in its summary of recommendations, clearly indicated that infrastructure investment was absolutely required. It included:

—works and measures associated with ensuring current systems meet the requirements of the various protocols, thereby reducing the risk associated with these systems; [and] the approach to addressing future servicing needs associated with the projected growth in First Nation communities.

We are not seeing that.

I indicated that over the next several years we are going to see an enormous growth in first nation communities and yet, we do not see a plan of action moving forward that would accommodate this growth in population. We already have systems that are overloaded and at risk and now we are going to add population growth.

It is essential that, if we are going to move forward with legislation, we actually commit to put the resources in place to ensure that first nations can meet those commitments.

One of the concerns with this piece of legislation is that there would be a downloading to chiefs and councils and to communities for the liability and for the cost of these systems. They may be held to a standard that they simply cannot achieve because they do not have the resources to do it.

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

Mr. Speaker, this is a hugely important topic that we are discussing this afternoon. I do not think that there is anyone in this chamber who does not believe that the question of unsafe drinking water has been a chronic problem and an embarrassment to Canada. Many first nation communities, especially northern and rural communities, are still living in third world conditions here in Canada in 2012.

On September 30, 2012, 116 first nations communities throughout Canada were still subject to a drinking water advisory.

This is clearly unacceptable and requires immediate action.

As National Chief Shawn A-in-chut Atleo, Assembly of First Nations, said, “Access to safe, potable water and sanitation is a basic human right”. Unfortunately, the bill would simply provide for the development of federal regulations governing the provision of drinking water, water quality standards and the disposal of waste water in first nation communities.

According to every report addressing the tragic situation of water on reserve, the massive infrastructure deficit—and problems with capacity—must first be addressed before any legislation is passed.

I remember visiting the communities in northern Manitoba a little more than two years ago during the outbreak of H1N1. In Garden Hill, only 50% of the community had access to safe drinking water. In Wasagamack, only 20% of the homes had access to safe drinking water, and those are the homes on the footprint of the health unit. There are federal labour laws that insist people working in that space have to have clean drinking water.

Unfortunately, this bill does not provide any additional resources or funding to address this critical capacity gap in infrastructure, nor in training. Further, there are serious concerns about the lack of real consultation with first nations during the development of the legislation, infringements on first nations jurisdiction and the inadequacy of the non-derogation clause currently in the bill.

The government's own national assessment on first nations water and waste waster systems, released on July 14, 2011, identified 314 water systems as high risk. It is interesting that the report was ready in April but somehow ended up delayed in order to not actually influence the election of 2011. The majority of high-risk systems served a small population, and water systems in remote communities were 2.5 times more likely be at high risk than low risk.

Now, more than a year after the release of that report on the national assessment on first nations water and waste water systems, which shows 73% of reserve water systems at high or medium risk, the Conservatives have failed to make any real progress toward the right of every first nations community to clean, safe, running water. As previously noted, as of September 30, 2012, there were still 116 first nations communities across Canada under a drinking water advisory. This is simply unacceptable.

I want to remind this Chamber that some of the communities that do not have drinking water at all and have to truck bottles of water to each home are not included in those statistics.

The Assembly of First Nations estimates that it will cost approximately $6.6 billion over 10 years to address this deficit. The 2012 federal budget allocated $33.8 million over two years for first nations water systems and wastewater infrastructure. This level of funding will perpetuate the status quo from previous years and is grossly inadequate.

“The National Assessment of First Nations Water and Wastewater Systems” said it would cost $1.08 billion to bring everything up to protocol immediately. The government's own estimates identify a $5.8 billion funding shortfall to deal with the first nations water and waste water capacity gap.

After the release of the national report on September 13, 2011, I wrote to the minister with respect to what we thought was impending legislation on water and waste water management. I quote:

I am writing to you on behalf of Liberal Leader Bob Rae and my Liberal colleagues in the Senate and House of Commons to convey the position of our caucus regarding the government's approach to creating a regulatory regime for drinking water for First Nations on reserve. Our position [which has not changed] has two main points:

First, Liberals will not support any legislation on safe drinking water that is introduced without an implementation plan for additional resourcing that fully addresses the deficiencies identified in the National Assessment of First Nations Water and Waste Water Systems (prepared by Neegan Burnside Ltd., April 2011). There is a clear consensus that the resource gap must be addressed as a precondition to any regulatory regime. The Report of the Expert Panel on Safe Drinking Water for First Nations (November 2006) states unequivocally that “it is not credible to go forward with any regulatory regime without adequate capacity to satisfy the regulatory requirements..”. This precondition was repeated by witnesses at the Standing Senate Committee on Aboriginal Peoples during its study of Bill S-11, An Act respecting the safety of drinking water on first nations lands, in spring of 2011.

Second, the government must collaborate with First Nations and obtain their free, prior and informed consent [as stated in the United Nations Declaration on the Rights of Indigenous People] on the range of regulatory options regarding safe drinking water identified by the Expert Panel on Safe Drinking Water for First Nations before the re-introduction of legislation. This approach is consistent with the Crown's obligation under the law, existing treaties and the United Nations Declaration on the Rights of Indigenous Peoples.

We went on to say:

It is essential that the concerns raised in this letter are fully addressed in the government's policy on safe drinking water for First Nations. The body of survey data, research and parliamentary testimony on this matter are a clear guide on what must be done. It is up to the government to adopt a new approach of collaboration and mutual accountability—one that we believe will surely have better results for the health and well-being of First Nation citizens.

That was the letter we sent September 13, 2011, and we have not changed our minds.

A year ago, in November 2011, the Conservative government supported the Liberal Party motion introduced in the House of Commons calling on the government to address, on an urgent basis, the needs of those first nations communities whose members have no access to clean running water in their homes. Yet, the government has still not moved to resolve this deplorable situation a year later.

The 2012 federal budget allocated a measly $330.8 million over two years for first nations water infrastructure. However, this money simply maintained the status quo from the previous year and was far from what is required. The Expert Panel on Safe Drinking Water for First Nations was clear, and I will say it again. It is not credible to go forward with any regulatory regime without adequate capacity to satisfy the regulatory requirements.

According to that report, regulation alone will not ensure safe drinking water. Any regulations must be accompanied by the adequate investment in human resources and physical assets. Yet, the government is content to impose standards and regulation on first nations regarding water and waste water treatment without providing the required investment in physical assets or capacity-building assistance to deal with the problem.

Where are the additional resources and funding to address the capacity gap? Where is the credible plan to bring first nations water systems up to a level comparable with other Canadian communities and the plan to keep them there, meaning the adequate training to keep those systems working after they have been installed? Where is the credible plan to have enough training and certification that the first nations themselves can design?

When I visited the Beausoleil First Nation in your riding, Mr. Speaker, I heard the story of unacceptable waits for a membrane just to fix a state-of-the-art treatment plant. There was worry after a lightning storm. There were fully qualified and very experienced 20-year veterans, who were unable to step into the water treatment plant after an electrical storm because they had not met the criteria. Even though in any oral exam these people were encyclopedic about the microbiology and the planning of it, they had to wait until the next morning for the first ferry for someone from the mainland to come along, to even walk into the plant.

It is ridiculous that we cannot find a system that allows people to work who know how to do the things that need to be done for their people. They end up on a boil water advisory because of that gap. It is just totally unacceptable and shows that no one is listening to these people as to what it takes to meet their needs.

The government must immediately target sufficient financial resources to close the capacity gap for first nations, in terms of both infrastructure and training regarding water and waste water systems on first nations land. Most of all, it must listen to first nations themselves and involve them in the planning for the placement of these projects as well as the training and certification.

There is no question that the goal of the bill is right. We want to address health and safety issues on reserve lands and certain other lands, by providing for regulations and waste water. Unfortunately, we believe the work has not been done in developing the kinds of regulations that are required. The regulations, on a province-to-province basis, to mirror existing provincial regulatory schemes, may not work all of the time. First nations must be consulted this time.

Despite the Prime Minister's rhetoric at the recent Crown–first nations gathering about resetting the relationship, the Conservative government has shown a total disregard for the rights of indigenous people. The government has used the same flawed approach on first nations accountability and matrimonial real property without discussions on the specifics of the bill with stakeholders or political parties before tabling.

Numerous witnesses who appeared before the Senate committee said that they were frustrated that the government did not consult the first nations regarding the drafting of this bill.

Introduced in the Senate in May 2010, Bill S-11, Safe Drinking Water for First Nations act, was sharply criticized by first nations and NGOs for ignoring the expert panel recommendations and for claiming sweeping jurisdiction without consultation.

Bill S-8 has most of the same flaws as its predecessor and does not seem to have taken first nations concerns into account. Consultation requires both a substantive dialogue and that the government listen and, when appropriate, incorporate what it hears into its approach. Consultation is not an information session, as we have heard time and time again, legislation after legislation, by the government. How can the government cite The Expert Panel on Safe Drinking Water for First Nations as the prime example of its consultation process and then move forward with a regulatory regime without a plan to deal with capacity issues for implementation? Consultation is of no use if the government simply disregards what it hears.

It is also unacceptable that the current non-derogation clause in the bill still expressly allows for the abrogation or derogation of aboriginal and treaty rights.

It is clear that the legislation completely misses the mark and fails to deal with the real issues underscoring first nations access to clean, safe drinking water. Until the government comes forward with a credible plan to deal with the huge shortfall in funding for needed infrastructure and the training required to further develop the operational capacity within communities to maintain that infrastructure, we are not going to tackle this national disgrace.

That is what the government's own expert panel has told it. That is what first nations is telling it. It is time for the government to listen.

It is with sadness, I remind the House, that it was seven years ago when the Kelowna accord was signed, after 18 months of work with first nations and provinces and territories. Five billion dollars was assigned to close the gap, and then the agreement was torn up as soon as this government came to office. We are seven years behind where we could have begun to address the problem with that money that was expressly for these purposes.

This afternoon I asked the minister whether we could expect to see in budget 2013 the kinds of dollars the Conservatives' own expert panels stated would be necessary to fix this problem.

To me, a strategy must be what, by when and how. My question for the government and the minister, accordingly, is when will 100% of first nations homes in 100% of communities have the same access to safe and potable drinking water and to waste water management as other Canadians in all communities and municipalities in this country?

I implore this House to actually call upon the government to put in place the dollars necessary to meet the objectives of the bill. Otherwise the bill is totally useless.

[Ray Boughen, Conservative, Palliser, SK]

Mr. Speaker, I have just a couple of observations. First, the Government of Canada also initiated a national assessment of first nations' water and waste water systems, resulting in the most rigorous, comprehensive and independent report of its kind. The assessment released on July 4, 2011 showed that the majority of risk is due to capacity issues, although infrastructure issues and lack of enforceable standards are also a factor.

Departmental officials, first nations and other stakeholders are encouraged by the recommendations and the next step. Funding is only part of the solution to address the provision of safe drinking water on reserve. Enforced regulations are also necessary to protect the health and safety of first nations.

The national assessment and numerous other reports have addressed the need for water and waste water regulatory regimes and standards on reserve. That is why the introduction of safe drinking water legislation remains a priority for the Government of Canada, and it is our intention to introduce the bill during the fall sitting of Parliament.

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

Mr. Speaker, I think the member actually made my point, which was that the panel said that we cannot go forward without the dollars to build the capacity to do this, both for infrastructure and the training to keep that infrastructure running.

I am still not sure. I understand that the parliamentary secretary asked that member to get this on the record, but really, the question he is asking supports the view on this side of the House that no regulations will work unless there are the dollars for the capacity and the training needed to meet the objectives of the bill.

[Alain Giguère, NDP, Marc-Aurèle-Fortin, QC]

Mr. Speaker, the member for St. Paul's spoke eloquently and from the heart. The problem is that the Liberal Party of Canada was in power. The problems with drinking water did not occur overnight. They did not suddenly appear when the Conservative government got elected. These problems keep resurfacing, and have been around for some time. It is perhaps time for this country called Canada to meet its obligations. Political parties should not only talk about these issues when they are in opposition, they must take action when they are in power.

Unfortunately, the Liberal Party of Canada left a terrible legacy, that of the three wise monkeys: speak no evil, see no evil, and hear no evil. The Senate is the perfect example of this—just look at this bill.

Can the member for St. Paul's tell us whether she is going to walk the talk?

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

Mr. Speaker, I agree entirely with the member. This is a non-partisan issue. The history of our aboriginal people is a shared history among all Canadians and a shared history among all political parties.

I remember the Kelowna accord. It was a start. It involved 18 months of consultations between the provinces, territories, and aboriginal leaders. Afterwards, there was a real strategy for health, education, affordable housing, infrastructure, accountability and also economic development, and it included $5 billion over 5 years to begin to improve this situation, which is an embarrassment to all Canadians.

[David McGuinty, Liberal, Ottawa South, ON]

Mr. Speaker, I would like to ask my colleague a question, but perhaps I will just get a couple of facts on the record first.

I am glad to see that the government is bringing this bill forward. After all, it was four front-line cabinet ministers in the government who were named by Mr. Justice Dennis O'Connor as being responsible for the Walkerton crisis, which killed many Ontarians and poisoned thousands of others.

The second thing I would like to remind the House about is that right now, for example, we are seeing the Experimental Lakes Area of Canada being completely killed in terms of funding. It is a global masterpiece of research for water and freshwater in the country. Moreover, the Environment Canada water research unit has been completely eliminated by the government. There is no water research capacity left. NRC's water research division has been slashed. The list goes on. The sustainable development technology Canada fund has been exhausted. There is no new money coming forward for water technologies.

How does my colleague react to that, particularly given the importance of not only Canada's first nations' drinking water crisis, but also the fact that one of the fastest growing environmental technology marketplaces in the world is to actually deal with water and waste water?

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

Mr. Speaker, we are also hearing across the country from first nations about navigable waters and why, in this omnibus bill, the only lakes and rivers protected seem to be in Conservative ridings. What happens to the lakes and rivers that first nations, Métis people and Inuit need for their livelihood? These waters must stay pure and remain something they can count on.

Many first nations leaders will tell us that they used to be able to put a cup in the water and drink it, that water is really important to them, the lifeblood of their existence. Just fixing bad water is not the issue. Protecting our water systems and being able to actually develop an economic development strategy that includes safe drinking water and waste water management should also be part of the economic development strategy for first nations.

[LaVar Payne, Conservative, Medicine Hat, AB]

Mr. Speaker, I would like to ask the member a question and talk about safe and reliable drinking water and the increased capacity that we have.

I am quite amazed that it appears that the member opposite and the Liberal Party are prepared to oppose this bill, in clear contradiction of the motion that the Liberal Party put forward and that was carried unanimously in this House of Commons. I am wondering how she can square that.

I would also like to speak about the circuit rider training program. It is an important first vehicle for first nations operators to receive ongoing training and mentoring on-site. Since 2006, Aboriginal and Northern Affairs has increased funding from about $5 million to $10 million per year to hire more trainers. There are currently perhaps only 65 circuit trainers working for first nations across the country.

However, I would first really like to know how the hon. member is going to square that circle I mentioned.

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

Mr. Speaker, I will repeat the motion for the member:

That the House call on the Government of Canada to address on an urgent basis the needs of those First Nations communities whose members have no access to clean, running water in their homes....

That actually means money. It means there must be the dollars for the infrastructure, the water treatment and the waste water plants, as well as the training that is required.

The 2012 federal budget did not deal with the billions of dollars that the federal panel said was required to fix this problem. We will see what happens when it comes to the committee. However, I was clear with the minister from September of last year that without some commitment to the money it will take to fix this problem, it will be very difficult for us to support this raining down of legislation: thou shalt do this and thou shalt do that, with no money to support it at all from the government.

[The Acting Speaker, Conservative, Bruce Stanton]

Pursuant to Standing Order 38, is my duty to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Thunder Bay—Superior North, Telecommunications; the hon. member for Gaspésie—Îles-de-la-Madeleine, Fisheries and Oceans.

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

Mr. Speaker, I would like to note that I will split my speaking time with my colleague, the member for Algoma—Manitoulin—Kapuskasing.

My speech will concern the bill respecting the safety of drinking water on first nation lands. And I would emphasize “first nation lands”. The French version of the bill is quite ambiguous about this. Does the expression “terres des premières nations” also include traditional lands? I will come back to that later.

This bill is an opportunity for me to expand on certain concepts outlined in my previous speeches that deserve to be explained in clearer terms for all Canadian citizens as a whole.

I will apply the principles of feedback here. Some of my colleagues, constituents and employees have told me that my way of speaking may seem arcane at times. This is something of an occupational hazard since I spent two years working for my band council on consultations about private cottage leases with Quebec's department of natural resources and wildlife. I subsequently taught at the college level and gave a course on legal and administrative aspects of aboriginal organizations. That has necessarily had an effect on the way I speak. Sometimes people may feel a bit lost as result of the terms I use, including “Indianness”, “fiduciary relationship” and “fiduciary obligation”. Today I will take stock and try to express those ideas in simpler terms. This is where we stand as a society. The general public must understand that, if we have to deal with legal texts that aim to circumvent those obligations by indirect means, that has something to do with all these subtleties surrounding the aboriginal question.

Certain concepts of aboriginal law should be explained since the bill before us is worded in a roundabout way that suggests there has been some recurring intrigue in the study of recent Conservative legislative initiatives respecting first nations.

Over the past year and a half, I have observed that a number of initiatives to amend the Indian Act, or matters specific to aboriginal identity in this country, have been designed to divide up the crown's current obligations toward aboriginal communities. This is quite distressing since, in many cases, those matters are entrenched in the Constitution. From the moment they concern identity issues, they are “Indianness” issues and issues that fall under the fiduciary relationship that must exist between the crown and aboriginal people. These are matters for the courts. The Supreme Court has staked it all out, through case law in particular; it is not codified. The ins and outs of this fiduciary obligation, of the fiduciary relationship, are not codified. However, they are clearly marked out. Many judges have adopted positions on these matters. We must examine the case law in order really to take stock of the scope of this fiduciary obligation.

Today I will try to explain it all in simple terms. From the moment an initiative, whether a legislative or a field initiative, is brought forward by the government and can interfere with title, traditional activities and aboriginal identity issues, it becomes an obligation issue, a fiduciary relationship issue. The government has a duty to adopt a rigorous principle of precaution and avoid affecting or unduly altering that relationship and matters that are entrenched in the Constitution. “Indianness” issues are all identity issues of the communities and of the Canadian government.

Coming back to matters specifically pertaining to drinking water, surface water and groundwater, I see from this bill that the Conservatives are trying to distance themselves somewhat from that obligation. This obligation falls, first and foremost, to the government. As is the case for Canadians as a whole, access to drinking water is a government obligation.

The aim of this specific bill is to make regulations that will ultimately transfer the entire burden to the communities, without—and this is worth noting—granting the necessary management budget and without any concern for water quality or damage to the water table.

Ironically, in 2012, the Conservatives are in the spotlight for approving a number of mining and forestry sector initiatives. Inevitably, those initiatives most often involve traditional first nations lands across the country. In communities that live in remote regions and in most cases return to those traditional lands, which have been theirs for more than 20,000 years—they have visited every square centimetre of them—there is a special relationship with drinking water sources on the land.

If the water table is damaged and the quality of surface water sources is no longer good, that is often related to this development, to these explorations. From the moment you carry on mining exploration—you drill and remove and analyze an ore sample—there is a real chance the water table will be affected.

If the Conservative government is trying to distance itself today, that is no doubt because it knows perfectly well that the intrigues involving the communities' traditional lands are linked to the lack of quality, to a damaged water table and to the often fair or debatable quality of surface water.

That is why I suspect the government, today, of trying to offload the responsibility onto the communities which, at the end of the day, have to deal with the radon gas contaminated water. It is just an example, but it is a relevant example that concerns my own riding.

In this particular case, it is clear that the relationship with the freshwater sources located on traditional lands is one of the first nations' bastions of identity.

This unilateral initiative violates the principles of the Crown's fiduciary responsibility, which describes the contribution of aboriginal peoples to the development of measures that have a major impact on the ancestral rights, titles and interests of the first nations. When I refer to fiduciary relationships, and fiduciary obligations, I should point out that this, too, is tied to this notion.

It means that governments, before considering and instituting measures that may hamper the traditional activities of communities and violate their identity and their rights—both treaty rights and ancestral rights—must, first and foremost, ensure that communities are involved, which is not the case here. Once again, this is a unilateral initiative. It has been decried internationally. Canada has been exposed in this matter.

I humbly submit that all of these initiatives are destined to fail as long as the first nations are not on the front lines, because these decisions must, ultimately, be the fruit of their reflection, and must be implemented by them.

In this instance, the government is trying to shirk its responsibility and distance itself from negative perceptions associated with its failure to take charge of issues that are its exclusive responsibility.

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

Mr. Speaker, I would like to congratulate my colleague on his very eloquent and very complete speech. I think our colleagues on the other side will have learned much from it.

I think clean drinking water is a fundamental right. My colleague may have heard of the municipality of Shannon in my riding, which has had to deal with contaminated water problems and needed substantial federal investments in order to get access to a potable water system.

Why is the government not investing in first nations communities, when they have a significant problem—even worse than in my riding—when it comes to access to drinking water?

I would like to hear more from my colleague on that question.

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

Mr. Speaker, I thank my colleague for her question. I will tell her now that the cost, in both financial and human terms, for remediating many surface water sources and water tables, is enormous at the present time. I think the Conservatives are starting to realize this today. There are analyses that have been brought to their attention.

Most often, these water sources, water tables and surface water sources, are located on traditional lands. The Conservatives know very well that their fiduciary duties mean that at this time, it is the people in power who have to make sure that services are delivered to the public and that the public has access to that water.

I know of communities very close to here, in Pontiac county, that simply cannot drink the water in their homes because the level of radioactivity exceeds all relevant standards. These are heavy costs, and they are the result of negligence that has gone on for decades, and today we can see the result. That is why the Conservatives are trying to distance themselves and shift the burden onto someone else.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Mr. Speaker, as the member sits on the aboriginal affairs committee with me, he would know that in the past two years our Conservative government has put forward $338 million toward first nations water and waste water systems. That is a significant amount of money. He would also understand that this money needs also to have first nations' buy-in for those systems to be put in.

Would the member agree that our government is working toward access for first nations to clean water and waste water systems but that it requires the first nations to buy in to the process and that we cannot force a first nation into it?