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.

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

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

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

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

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

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

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

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

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

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

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

I'll leave those as my opening comments.

[Terry Hancock, Lawyer, Legislation and Law Reform, Canadian Bar Association]

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

The Canadian Bar Association is very pleased to be appearing before you this morning to speak to Bill S-8, which is a very important piece of legislation for Canada's aboriginal people.

The Canadian Bar Association is a national organization that represents over 37,000 lawyers from across Canada.

The letter you received was prepared by our aboriginal law section, a group of lawyers from across the country who are specialists in aboriginal law.

One of the Canadian Bar Association's objectives is to improve the law and the administration of justice. It is through that lens that we have examined Bill S-8.

With that, I'm very pleased to introduce you to Mr. Christopher Devlin, a well-known expert in aboriginal law, and well known to this committee.

Mr. Devlin is here on Victoria time to address the main points of the bill.

Thank you.

[Grand Chief Roland Twinn, Grand Chief, Treaty 8 First Nations of Alberta]

Good morning. I'll try to be brief. Most of what I was going to speak of was mentioned by the other representatives today. I'm going to allow some time for Chief Rose to use up some of our time together.

First off, the Assembly of Treaty Chiefs of Treaties 6, 7, and 8 in Alberta has, from the very beginning, made significant efforts to work with the Harper government to fix the deplorable state of first nations' drinking water systems. Our efforts have been rewarded by the government with political spin, broken promises, and a meaningless piece of legislation that will do nothing to ensure safe drinking water for first nation people.

We also have the exact same concerns as the Mohawk Council of Akwesasne, although I do have a little bit of a different view. I do not believe that a self-government agreement will exempt you from this legislation. I believe there's a clause in there that says this is enforced, in effect, with those first nations who have self-government agreements. The bill does not respect our section 35 rights, and our nation, the Sawridge First Nation, has exercised our section 35 rights to self-government and self-determination. We have developed our own constitution, our own legislation, and we do hold 15 areas of jurisdiction to ourselves.

This legislation, in my view, is going to make a lot of lawyers rich, and that's all it's going to accomplish. We are going to have to take this to court, to either judicial reviews or actual cases. There are 25 first nations in Treaty 8 Alberta and our situations are all completely different.

As the Sawridge First Nation, we don't have a drinking water system of our own. We are a small nation. We've applied to the federal government for over 20 years to control our own water and sewer systems. We've been repeatedly denied by the government. Our water is provided by the Town of Slave Lake municipality. We have taken advantage of the program for monitoring safe drinking water. The water standards are higher at the federal level is what we have found. Some of the contaminants in the water are at a high level according to the federal standards; however, when I get the letter from Health Canada, it says our water is provided by a municipality and is within provincial standards.

I'm not sure if the people of the Sawridge First Nation would agree that we would fall under now lesser standards using the provincial government's standards.

This has been echoed. There have been several expert panels who have said they need resources prior to legislation regulation. There have been so many times that we've seen these types of things being pushed through.

On section 35, the expert panel on first nations drinking water did an independent legal analysis of section 35 rights and concluded that there's a sound legal basis for first nations' right of self-government over water in their communities. Canada has refused to consult with us about the implications of Bill S-8 in this regard.

We're in the 21st century. You would think that the draconian ways of dealing with first nations of this country have dissipated, but they seem to be alive and well.

To top all of this off, the only part of Bill S-8 that actually does anything is the liability protection provisions that excuse Canada from all responsibilities for the safety of first nations' drinking water. If the bill were truly named, it would be “Breach of fiduciary duty to first nations and protection of liability for the Government of Canada, and the abdication of its moral and legal responsibilities for safe drinking water for first nations act”. That's how we feel.

I will turn it over to Chief Rose; she has a few words to say.

Thank you.

[Grand Chief Craig Makinaw, Grand Chief, Confederacy of Treaty 6 First Nations]

Thank you, Chairman.

Thank you and good morning, members of Parliament, staff, chiefs, and technicians who are here today.

I am Chief Craig Makinaw from Ermineskin Cree Nation and also the Grand Chief of the Confederacy of Treaty 6, representing 17 first nations.

I'd like to introduce one of our council members from Ermineskin. Laurelle White is sitting with me.

We are tabling a written submission with the committee. I'm not going to read the submission but rather highlight some of the key points related to our objection to the whole legislation.

We have travelled from Ermineskin and Treaty 6 to appear before this committee on Bill S-8. Our ancestors entered into treaty with the British crown to allow for the Queen's subjects to live in our territories. When our ancestors entered into treaty with the British crown, water was included in the treaty for as long as the rivers flow. These were the words used at the time of treaty-making. In any discussion on water and the use of water, our treaties must be considered. Our ancestors did not give up water. Our ancestors tied the treaty-making to the waters flowing. The crown did not ask for the waters.

When we talk about water and the actions of the Parliament of Canada, the honour of the crown arises. Treaties are important constitutional documents for the state of Canada. Under international, Commonwealth, and Canadian law, Canada could not exist without the treaties made with our ancestors. The treaties underpin the whole state of Canada.

In light of this foundation, what is the constitutional authority of Canada to impose a legislative framework on the treaty first nations? Where is the honour of the crown?

In the Haida case, the Supreme Court of Canada wrote:

The honour of the Crown also infuses the processes of treaty making and treaty interpretation. In making and applying treaties, the Crown must act with honour and integrity, avoiding even the appearance of 'sharp dealing'.

Treaties serve to reconcile pre-existing aboriginal sovereignty with assumed crown sovereignty and to define aboriginal rights guaranteed by section 35 of the Constitution Act, 1982.

It is clear from the court cases that the Supreme Court of Canada, on the issue of the honour of the crown, is relevant when dealing with treaty rights. This is the case even when those rights have not been proven. The assertion of the right engages the government in a process to consult with first nations. It cannot be overridden by Parliament.

There is a positive obligation on the government to act in an honourable way in dealing with treaty peoples. In the case of the drafting and submitting to the Senate Bill S-8, An Act respecting the safety of drinking water on First Nation lands, no process was engaged with first nations.

The proposed legislation won't change the constitutional rights of the treaty first nations and put our nations in harm's way under various provincial schemes. There are ongoing boil water advisories across Indian country. This legislation does not propose any solutions. Rather, the legislation puts first nations in the direct path of an oncoming freight train.

At the same time, government is busy undermining programs that might have assisted first nations to avoid the whole process. We recently learned of the cancellation of the drinking water quality program. The government officials wrote:

The dedication and on-going support to this program enabled this program to grow and mature into a very successful and respected research program by First Nations communities across Canada.

Was it due to its success that the government cancelled the whole thing?

To quote the next paragraph:

I regret to inform you that Health Canada will not continue with the Drinking Water Quality Program after March 31, 2014. The Drinking Water Program will focus on enabling the communities to monitor drinking water quality as per the Guidelines for Canadian Drinking Water Quality.

How is this going to be done? The legislation is pushing our nations into the hands of the provinces and private corporations. This is a violation of the treaty. Programs and services that are started and cut by civil servants do not honour the intentions of the crown. These decisions are in contravention of any semblance of democratic processes. Legislation is drafted. We are invited to speak, but none of our words are taken into consideration. There are no amendments. There is no process.

We have complained to the United Nations as we struggle to uphold the honour of the crown, but the successor state of Canada throws dirt on the crown on a daily basis with these kinds of bills and acts. This is not bringing honour to the crown. We do not give our free, prior, and informed consent to this legislation.

I'd like to thank you for the opportunity to make this presentation today. I have some other motions from AoTC, from our chiefs' meetings.

[Chief Charles Weaselhead, Chief, Blood Tribe/Kainai]

Thank you.

[Witness speaks in Blackfoot language]

Good morning, Chairman, and members of the standing committee. On behalf of the Blood Tribe, thank you for the opportunity to address you on Bill S-8.

As you know, the Blood Tribe has a population of just under 12,000 on a huge tract of land, so Bill S-8 will affect us not only with regard to our constitution but also in the way the bill is delivered through regulations in our community.

The Blood Tribe, of course, has expressed concerns with this bill, through submissions and representations, from its inception as Bill S-11. Unfortunately, these efforts have not met the intended goals as the existing legislation, Bill S-8, will not provide safe drinking water for first nations peoples. Bill S-8 will put in place a legislative framework that will place the responsibility and liability for safe drinking water systems on the shoulders of the first nations chiefs and councils without giving them the financial resources and the capacity to carry out the responsibilities. Appendix A shows the amount of resources required to make sure we come up to speed with what is necessary for safe drinking water and wastewater management.

By transferring the liability to the first nations, Bill S-8 absolves the federal and provincial governments of liability. We do not see this as the proper exercise of the federal crown's fiduciary duty to first nations, a duty that has been recognized by the Supreme Court. Bill S-8 will not provide safe drinking water to first nations communities. It will only saddle first nations government with a responsibility that they do not have the resources to carry out. When they fail to carry out that responsibility, they will have broken the law and will be subject to punitive measures under the law. That is the situation that will be brought about by Bill S-8.

Earlier, I spoke to Bill S-11, and that was specifically what was stated in there, that the number one priority was to provide the necessary resources before regulation or legislation was set out. How does this scenario bring about safe drinking water for first nations communities? How is this the solution for the desperate and deplorable state of drinking water for first nations communities which has drawn worldwide attention?

In May 2003, Indian Affairs' own assessment of water and wastewater systems in first nations communities found that 75% of first nations water systems in Canada posed a risk and required a massive investment, having been neglected for decades. In 2006, the expert panel on safe drinking water for first nations, commissioned by the federal government, found that the primary issue was insufficient resources for first nations water systems and recommended that adequate resources be a precondition to any legislation. That is spelled out clearly in appendix A of the submission by the Blood Tribe.

The expert panel realized that a regulatory regime would not address the situation. Creating and enforcing a regulatory regime would take time, attention, and money that might be better invested in systems, operators, management, and governance.

In 2007, the Standing Senate Committee on Aboriginal Peoples in its final report on safe drinking water for first nations recommended that the resource gap for first nations water systems be addressed first as a precondition to any new legislation, and that first nations be consulted about the development of new legislation.

Recently, the national engineering assessment of first nations drinking water systems, commissioned by the federal government, found that a $4.9-billion investment is required to ensure that first nations peoples get the same level of drinking water services that are available to other Canadians. Of that, $162 million is needed in Alberta and $30 million is needed in the Blood Tribe. The United Nations has recognized a human right to safe drinking water. Without the required $4.9 billion investment in first nations water systems, this bill will violate our human rights for safe drinking water.

The national engineering assessment also found that in Alberta 64% of water systems cannot afford qualified operators. Only three out of 82 first nations water systems are operating without risk. Some 26% of first nations water systems are high risk, deliver inadequate water supplies, and need immediate corrective action.

These reports, panels, and committees on first nation drinking water systems all come to the same conclusion: only resources will ensure the safety of first nations' drinking water. Legislation cannot create safe drinking water. How can anyone, in the face of credible expert advice, pass this legislation? The $4.9-billion shortfall needs to be addressed. That is what will begin the process of ensuring the safety of water for our first nation communities.

As far as legal rights are concerned, it has been said that the bill is not about rights. That is not true. Safe drinking water for our people is our priority, and always has been. However, Bill S-8 not only fails to provide for safe drinking water, it also gives rise to serious legal issues that need to be addressed. These include no consultation.

Canada is legally required to meaningfully consult with the Blood Tribe whenever it contemplates action that may adversely affect our constitutionally protected aboriginal and treaty rights. Given that the bill provides for the derogation of such rights, Canada's duty to consult has been triggered; however, there has been no consultation with the Blood Tribe.

As far as our band council authority goes, the Blood Tribe council has authority under the Indian Act to pass bylaws dealing with the construction and regulation of wells, cisterns, reservoirs, and other water supplies. The bill provides that the regulations may prevail over any of our laws, including any that we make under the Indian Act respecting these matters. This bill amounts to regulations having the ability to usurp our statutory authority to make these laws.

The expert panel on first nations drinking water did an independent legal analysis of section 35 rights and concluded that there was a sound, legal basis for first nations' right of self government over water in our communities. Canada has refused to consult with us about the implications of Bill S-8 in this regard.

As far as third-party powers are concerned, the bill provides for the conferring of very broad legislative, administrative, judicial, or other powers on some unknown third party, who can, among other things, appoint an unidentified person or entity to manage our drinking water system. Essentially, it could punish us if we failed to adhere to the regulations, through the imposition of fines or imprisonment, or both. The bill further allows this third party to seize and detain things when verifying compliance with the regulations, and to obtain warrants to search places.

On imposition of liability, the bill provides authority to deem us to be the owner of a water system that is not ours. As a result of being deemed an owner, we would consequently possess certain liabilities that we would not otherwise have. At the same time, the bill makes provision for extensive liability protection for third parties and federal and provincial representatives.

On the matter of the UN Declaration on the Rights of Indigenous Peoples, Canada has endorsed that declaration, which states that legislation of this nature must be developed with the free, prior, and informed consent of indigenous peoples. A half-day engagement session on the legislation does not meet this obligation.

Where do we go from here?

We have sent out a profile of the Blood Tribe in appendix A, which is attached to this submission. You will see that we are obligated, through our tribal principles as expressed in Kainayssini, to protect our rights. What Bill S-8 proposes will adversely impact our rights. We are therefore opposed to it for these reasons. We are not opposed to safe drinking water or wastewater management. That must be at the forefront.

For these reasons, as well as the underlying and fundamental reasons we have mentioned above, we do not believe that amendments alone can remedy the problems inherent in this bill. We are of the view that Bill S-8 ought not to proceed at all, because Canada has not discharged its legal duty to meaningfully consult with first nations, including the Blood Tribe. Canada cannot continue to act in disregard of its duty.

We are of the further view that prior to this proposed legislation moving forward in the House, meaningful consultation should occur. We therefore recommend that this bill not be passed or enforced until such consultation has taken place. Additionally, any proposed solution to the issue of safe drinking water, whether by legislation, policy, or otherwise, ought to ensure that practical solutions are provided so that our people ultimately have access to safe drinking water. That ought to be the focus of any action Canada takes, rather than on violating our rights and imposing a paternalistic and punitive approach to the problem.

Our submission does not constitute consultation. We respectfully submit our concerns about Bill S-8 to the Standing Committee on Aboriginal Affairs and Northern Development. On behalf of the Blood Tribe chief and council, thank you for giving us this opportunity to provide the Blood Tribe's submission.

[Jim Ransom, Director, Tehotiiennawakon, Mohawk Council of Akwesasne]

Thank you.

Good morning. I'm specifically going to address the regulations proposed in Bill S-8.

My name is Jim Ransom. I serve as the director of Tehotiiennawakon and oversee the environment, economic development, and emergency measures for the Mohawk Council of Akwesasne. I'm going to address in particular clauses 4, 5, and 6 in Bill S-8. They really represent the heart of Bill S-8.

While we support safe drinking water with appropriate standards, we cannot support the way Bill S-8 is written. In regard to developing standards, we have prepared a proposal to develop our own water and regulatory framework. We have submitted it to Aboriginal Affairs and Northern Development Canada.

It is comprehensive and will meet and exceed the requirements in Bill S-8. It has been prepared in cooperation with the Provinces of Ontario and Quebec. Building relationships around common interests and ensuring safe drinking water for all peoples is important to us. We actually have letters of support for our approach from the Ontario Ministry of the Environment and from the Quebec Ministry of the Environment.

However, the approach we've taken is not envisioned by Bill S-8. Clauses 4, 5, 6, and 7 put us to the back of the regulatory bus. Subclause 5(1) deems us owners of our water systems but fails to recognize our authority to self-regulate those same systems. Instead, it transfers liability without consideration of the condition of the assets being transferred to us, and it sets us up for failure without adequate resources to ensure transferred systems are safe and can be maintained.

Bill S-8 recognizes provincial water laws, but not first nation water laws. Clause 6 allows the Minister of Indian Affairs and our Minister of Health to enter into agreements made under the regulations “with any province, corporation or other body” and related to “administration and enforcement of regulations”, but it doesn't do the same with first nations.

To address these concerns, we offer the following recommendation: that clauses 4, 5, and 6 be amended by including first nations as entities that can be conferred legislative, administrative, judicial, and other powers necessary to effectively regulate drinking water systems and wastewater systems. In other words, don't just make us owners: give us the responsibility to regulate our own systems. The development of regulations must be done with the active involvement of first nations and should have room for recognition of first nations' jurisdiction and authority.

The last concern we have with Bill S-8 is in the sense of how it confers to the provinces jurisdiction over first nation water systems. In doing that, it doesn't consider the reality. Provincial water laws were developed for a different audience. They were developed for their own municipalities. They were not developed with first nations in mind.

For first nations, we have unique circumstances that are not considered by the provinces. We have cultural traditions that are not considered. We have operators in our communities who in many cases have not been trained to provincial standards.

Also, how you deal in remote communities with on-reserve water and wastewater systems is totally different from how you would deal with it in, say, Toronto or Ottawa. That's not being considered.

For us in particular, we're in two provinces. If you're going to confer and delegate down to the provinces, which province? That's a question that we have in particular.

We feel that the legislation can be enhanced by including provisions that allow first nations who have the abilities to develop their own regulations—or groups of first nations working together—to self-regulate. That's the direction the provinces are going in right now because of budget cutbacks. They're trying to get out of the regulatory business. And suddenly in Ontario you're giving them 133 first nations that they will now have responsibility for, with no resources.

We've spoken with them. They're not ready to take on that burden. But we are, because we see it as a responsibility.

With that, I'll turn it over to my colleague Micha Menczer.

[Brian David]

Coming from Akwesasne, we are a community of about 16,000. If you're not aware, our community is divided by the international border and a provincial line. For this very reason, in the early 1990s we negotiated a protocol agreement with Canada to deal with some of the unique features and issues that come up as a result of these multi-jurisdictional areas.

We've been an active participant in the discussions that have taken place over the last several years surrounding the development of federal legislation to address the safety of drinking water for first nations. Last year the Mohawk Council of Akwesasne provided oral and written testimony on Bill S-8 before the Standing Senate Committee on Aboriginal Peoples.

Regarding first nations' views on the expert panel, unfortunately, this has not continued with the drafting of the Bill S-8. We feel there was a lack of consultation and accommodation. I think this is a feature of the shortcomings that we hope to raise with the committee today.

As I've mentioned, we've reached milestones with Canada in self-government negotiations— first with the protocol agreement, then with active negotiations on lands and [Inaudible--Editor]...sectoral agreement. We have an agreement in principle on governance and relationships. We're actively involved in a negotiating mode with Canada for self-government.

I have mentioned before that we have in place a protocol agreement as a background. As an annex to that agreement, in the area of water and water regulation, it's already there. This particular act supersedes and oversees that, which causes great concern to us. The land and sectoral agreement that we're negotiating would encompass many of the issues that are currently being addressed in federal legislation. It is and always has been our opinion that the water quality standards can be established by first nations, that first nations who have the capacity to develop their own regulation and have a tradition in that, should do so. But they should do so in a manner that's not inconsistent with the standards set federally or provincially. All that is to be done should be left to the first nation. It has to be done that way because we all come from different and unique situations across the country.

One issue of particular concern has to do with the derogation clause, clause 3, within Bill S-8. It abrogates and derogates aboriginal and treaty rights to the extent necessary to ensure the safety of drinking water on first nation lands. We take strong exception to clause 3, as it intends to derogate from the existing aboriginal and treaty rights of aboriginal peoples guaranteed under section 35 of the Constitution Act, 1982. Aboriginal and treaty rights are inherently protective of the natural world, including waters. They're based on living in peace and harmony with our surrounding environment. The waters are viewed as bloodlines of our earth, our mother, and our survival depends on ensuring the health and safety of the waters. There is no need for a derogation clause that would take away these rights; they are inherently protective of the waters, and thus to the health and safety of our peoples.

If the existing provincial water laws already recognize and affirm aboriginal and treaty rights consistent with section 35 of the Constitution Act, 1982, the federal water legislation proposed for first nations should be consistent with both the protections afforded in the Constitution Act, and the provisions within provincial water laws that recognize those rights. It is strongly recommended that clause 3 of Bill S-8 be rewritten so that it is consistent with the Constitution Act and provincial water laws, with wording along this line:

For greater certainty, nothing in this Act or the regulations is to be construed so as to abrogate or derogate from any existing Aboriginal or treaty rights of the Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.

I'll now turn this over to my colleague, Mr. Jim Ransom.

[The Chair, Conservative, Chris Warkentin]

Colleagues, we'll call to order the 75th meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

We are continuing today our study of Bill S-8. We have representatives from across the country. It is our privilege to have our witnesses here today, and we certainly appreciate folks coming from different parts of the country to reflect on this bill and to give us their testimony.

Colleagues, there have just been some small changes to the schedule of the witness list. We are going to hear from first nation communities first, and then in the final 45 minutes we'll hear from representatives of the Canadian Bar Association and the Canadian Environmental Law Association. We're going to cut it into two separate panels of witnesses, which will enable us to reflect a little more coherently on the bill. I do apologize to our colleagues for not being more clear about that in the information we sent out.

With no further ado, we do want to hear from our first nation representatives from across this country. We're going to begin by hearing from the representatives of the Mohawk Council, and I believe it's Acting Chief David who will begin our rounds of testimony. We will hear from the different representatives for 10 minutes and then we'll have some questions for you.

We'll turn it over to Acting Chief David.

Incorporation by Reference in Regulations Act

[Dennis Bevington, NDP, Western Arctic, NT]

The foreign investment protection act is another piece of legislation that just went through. The foreign investment protection act means if we change legislation regulations in Canada and it does not fit what the foreign investors had expected from our country, then they have the right to complain, to take action.

All of a sudden now we are in a position where regulations that are decided somewhere else by someone else other than this Parliament can make that a probability, perhaps a reality. Those are things we have to think about with this.

We are changing the way we are doing business. Is the way we are changing doing business the way we want to do that? I would say right now that, to me, amendments to the bill are needed.

I understand why people want to have the bill, the necessity to do the things that make sense with the bill. It is good to have regulations that can recognize inflation and the changing nature of our society, that can do those things that make sense. I do not have a problem with that. I am in favour of that, but I am not in favour of impeding our sovereignty in any way through changing the way we make regulations. That is clear. I do not have to think twice about that.

When we talk about Bill S-8, about the safety of drinking water on our first nations reserves, we are talking about a law that enables regulations, and those regulations will probably be made in provinces. Those provinces will change those regulations for safe drinking water as time goes on. That is the reality of the situation.

We have a fiduciary responsibility to first nations in the government. We need to ensure that any changes that are made to regulations are run by the first nations to whom we will apply this law. Therefore, we need to have the opportunity to look at changes, to consult with our first nations about changes that are made by provinces if we adopt their regulations to govern safe drinking water on first nations reserves. There is another instance of why we need to look at this legislation.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, I am very pleased to stand here at 11 o'clock at night to have the opportunity to speak to the Statutory Instruments Act.

First, I am not very pleased that the bill has come from the Senate. I find this is an inappropriate direction for legislation of this nature. It should have come from the House of Commons.

Right now, at the aboriginal affairs committee, we are dealing with another piece of legislation, Bill S-8, which also came from the Senate. That legislation has been panned by almost everyone who is standing in front of our committee because it does not have the ability to provide resources for the things that are required within the bill.

A Senate bill cannot put a financial burden on the government. Therefore, that bill is not effective. It is also the wrong direction, as well.

That aside, when we look at the bill, it is an interesting one. I think we have all learned a lot through this debate tonight, and I am sure the debate will continue on it because it is a very important bill. As my colleagues pointed out, it would make 170 decisions of the government legal after being illegal for a number of years.

There is a lot to regulation. There are 3,000 regulations on the books, consisting of 30,000 pages. There are also 1,000 draft regulations every year. That says that those 3,000 regulations are being changed constantly. There is change within the system. That change has the scrutiny of Parliament, its officers and its staff. That is taken care of within the confines of our Government of Canada.

We now have a bill that would open up change to our regulations from a variety of sources that we would no longer have control over. What is going to happen here?

In the bill, there is a section which says, “The power to make a regulation also includes the power to incorporate by reference an index, rate or number”. Now, we do not have definitions of those three things, but I guess we can assume that they cover most of the gamut of what regulations are. It goes on to say, “as it exists on a particular date or as it is varied from time to time”. Therefore, as it varies, it can be incorporated. It goes on to say, “established by Statistics Canada, the Bank of Canada”, all good institutions. I do not have a problem with those institutions helping with regulations. Then it says, “or a person or body other than the regulation-making authority”

As my colleague from Fort McMurray—Athabasca said, this can be Canadian regulations, it can be provincial regulations, or it can be international regulations.

We now have a situation where we are going to incorporate regulations under Parliament that are made in other countries. It sounds good. Countries make choices. They may be very good choices. However, those regulations can also be varied in those countries and we have no control over that. We would have no control over what would go on with those regulations when they are varied in those countries.

How does that fit with sovereignty? I am not here to sell Canadian sovereignty. That is not my goal in this Parliament, I am sorry. Canadians need to control the regulations that are created by Parliament. They need to have a say over how those regulations are changed, whether they come through the provinces, whether they come through bodies in Canada, or whether they come through international bodies. That is quite clearly the case. That is what most Canadians will want.

What we have is a situation where we need some amendments to the bill. We need to limit the ability to take on changes that are made in bodies outside our country. We need to ensure that changes made to regulations that are made within Canada have the scrutiny of Parliament through its procedures, through its committees that are set up to do exactly that. Those are types of amendments that could be made to the legislation to make it more palatable to most people when they understand the nature of what is going on with this innocuous named bill.

It does not sound very threatening and, if handled correctly in the interest of Canadians, with the understanding of Canadian sovereignty, it works out quite well, unless it is used as a tool in international trade agreements to take on regulations so that we can make trade deals with other countries and take on their regulations.

We are into the European Union right now. The European Union will demand a lot of things of Canada. It is going to demand that Canada do things the way the European Union does them. That is what it wants, if we want to have a trade deal with the European Union.

This is an opportunity to give the European Union exactly that. We could take on the regulations of the European Union for many things. We could put them into our system, and in the future, if they make changes to those regulations, those will fit into our system as well.

How does that fit with sovereignty? I do not buy it. I stand here today and say that if I do not hear a better argument against this, I cannot buy this legislation. If I do not see some kind of amendments in it that actually protect my country from having changes made to its laws by other countries without the scrutiny of this Parliament, I cannot buy that. That is not for me. If it is for you, then I say you should go back to your constituents and tell them what you are doing with Canada.

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

I think the question is on liability. It sounds like, from the municipalities, they're a little concerned that Bill S-8 confers some liability to the local municipality.

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

There were concerns that there might be some untoward effects on these agreements coming out of Bill S-8, which haven't been cleaned up in the bill other than in a vague letter from a minister.

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

Are you confident that you will be able to continue with those initiatives you've undertaken to date if Bill S-8 is passed?

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

Thank you, Mr. Chair.

I want to thank the witnesses for coming forward today.

I want to start with Chief Vicaire. It seems that the Atlantic Policy Congress has done a tremendous amount of work, has taken the initiative, and is moving forward.

Now, I want to point out that all the work you've done has been done without Bill S-8 in place, so can you speak to the fact that you've been able to go ahead and take charge of these initiatives without this particular legislation? The government is saying that we need this legislation in order to have these kinds of things happen, but clearly you're moving ahead.

[Robert Howsam, Executive Director, Ontario First Nations Technical Services Advisory Group]

Thank you very much, Mr. Chair and committee members, on behalf of the Ontario First Nations Technical Services Corporation. I want to thank you for asking us to provide our technical perspective on this issue and to highlight some of the challenges that Ontario first nations encounter when delivering safe drinking water.

Our presentation is only of a technical perspective and not intended to replace the perspectives of the Assembly of First Nations, the Chiefs of Ontario or Ontario first nation leadership regarding the whole range of issues around consultation, finance, aboriginal land, and treaty rights.

In cooperation with individual communities in Ontario and affiliated first nation tribal councils and technical units, OFNTSC delivers advice on infrastructure and provides operator training to address the evolving needs of first nations. The Ontario First Nations Technical Services Corporation is active in the area of water and waste water—in particular in operator training and engineering services. We have staff look at environmental issues, project planning and development, fire safety, fire protection, housing and environment, and engineering services. Obviously the focus of the presentation today is on the drinking water issue.

There are many parallels between the circumstances of Ontario first nations now and the conditions that existed in Ontario municipalities prior to Walkerton in May 2000. However in the years following the publishing of the Walkerton inquiry report, the promulgation of regulations from the Ontario Safe Drinking Water Act 2002 and the Ontario Clean Water Act 2006 have successfully legislated municipalities and other provincial agencies to provide a broad safety net that minimizes the risk of releasing unsafe drinking water to consumers.

There is a high price to be paid for this safety net in the form of abatement, compliance, enforcement, and resources. Unfortunately, the delivery of reliable and safe drinking water to many first nations in Ontario remains unavailable. When the Ontario drinking water regulations are compared to other Canadian regions, the key difference in Ontario's case is that the safety net known as the agency—the Ontario Clean Water Agency—will come to the aid of any failing Ontario municipal drinking water authority. The cost of the agency's service is borne by the owner of that water system and could potentially include legislation and investigation.

Currently first nations and the federal government do not have an Ontario-like compliance abatement or enforcement mechanism. Without these types of mechanisms, first nations' boil water orders continue to illustrate the long-term health and safety issues that can only be remedied through significant capital reinvestment and facility upgrades. That's true in terms of the high risk facing at least 30 Ontario first nations.

The formula for balancing ownership and liability in Bill S-8 may in fact serve to reduce Ontario first nations' autonomy and increase the liability of chiefs and councils. The elements that comprise the Ontario municipal drinking water quality management system are an effective yet very costly model to administer due to the safety net features. Ontario first nations would benefit from a similar safety net. However, the additional cost required to administer it would be impractical given existing federal allocations. Already stressed capital and operation budgets would never be able to subsidize the safety net and would require significant new funding streams.

The notion of incorporation by reference is of particular significance to Ontario simply because of the complexity of the Ontario legislation. So if incorporation by reference happens, it must be noted that in the case of Ontario first nations, there is a very different reality in terms of their size, geography, capacity, etc.. That difference is even true when compared to most remote or rural municipalities, let alone urban centres. There are currently 30 communities in Ontario that only have winter road access via ground travel and receive their electrical services through on-site diesel generation, which brings a whole set of challenges on its own.

The national engineering assessment, which was mentioned earlier, estimated that the cost of addressing first nations' water facilities in Ontario would be $241 million, with another $4 million annually required for operations and maintenance.

Incorporation by reference would only drive these numbers even higher because of the complexity of the provincial legislation.

Now I'm going to turn it over to Matt, to talk a little bit about the current infrastructure realities.