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

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, the fact is, $330 million was spent in 2011, we have a record of zero in 2012 and we do not know what the long-range plan is. We do know that these figures were arrived at without the necessary prerequisite consultation.

We know the status quo, and the record has been abject failure. The conditions have not improved dramatically. If it was an urgent emergency in any other community in the country, if it was Selkirk or Plum Coulee, Manitoba, or any other community, people would be swooping in there and fixing the problem. It would be addressed.

There would not be yet another panel struck, and yet another consultation asking 700 people if they have any water or if they have a toilet in their house. The answer is no, they still do not have toilets.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Mr. Speaker, to make this personal, to make this real to people in this chamber, 82-year-old Mr. Taylor is diabetic. He requires dialysis every few days. He has no bathroom and no running water. He draws his water from a hole in the ice. He has an outhouse, but the temperatures drop to -40° C.

Former auditor general Sheila Fraser reported that the government had failed time and again to take measures that would improve the quality of life for first nations. The basics of life, such as adequate housing, clean drinking water, child welfare and education, are persistently and dramatically substandard.

Ms. Fraser said, in her parting words to Parliament, “a disproportionate number of First Nations people still lack the most basic services that other Canadians take for granted.... In a country as rich as Canada, this disparity is unacceptable.”

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, I want to thank my colleague for reminding us of the powerful words of one of the most respected auditors general Canada has ever seen, and the admonition that she expressed as one of her parting speeches.

We just heard that Elijah Harper passed away, quite an iconic aboriginal leader. My colleague is right, in Red Sucker Lake, there is no running water and that is where he is from. There was a funeral service for him. My colleague, the member for Churchill attended. It is not that there is no running water, it is that a lot of the houses have no running water in Red Sucker Lake.

Shamattawa, Pukatawagan, Poplar River, we have toured those communities. It is absurd. Not only are there 15 people living in a house designed for 5, but when we took off the drywall to observe, we found black fur mould. Kids were crawling around on the streets. They have mold in their houses, no running water and are using a five-gallon oil can as their toilet.

We should not tolerate these conditions. Why do we? Desmond Tutu had it right when he visited Canada. He shook his head at our northern reserves and said, “Ah, yes, we have this, too, in my country. It is appalling”.

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

Mr. Speaker, in all of our dealings with first nations, there is always the honour of the Crown that is involved. My colleague also rightly pointed out that the corresponding obligation with consultation is accommodation, in order to respond exactly to the concerns that were expressed in those consultations.

In the Haida case, the Supreme Court stated that consultation may also involve full consent. Those are not my words, but the Supreme Court's. On very serious issues, that is what the Supreme Court said.

Is it just me, or are we missing the point again here?

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, I thank my colleague for reminding us, and I do acknowledge his long experience and expertise in this field as a well-respected leader of the James Bay Cree and the northern Quebec Cree people.

We are missing the point collectively, but some people are missing the point by design and deliberately. It is very convenient when they keep changing ministers and they keep changing members of the aboriginal affairs committee, so that nothing ever happens. We are paralyzed. It is almost too important to be left in the hands of political discourse. It is just basic needs, and it should simply be done. We might have to book $5 billion, which is the estimate of the immediate shortfall just to provide running water, never mind adequate sewage treatment, et cetera, to the homes. We are missing the boat.

I do not want my grandchildren to look up to me someday and say, “Grandpa, what did you do to address the appalling social conditions that used to exist in Canada? Were you part of the problem or part of the solution?” All of us in this chamber should be asking ourselves the same question.

[Robert Sopuck, Conservative, Dauphin—Swan River—Marquette, MB]

Mr. Speaker, the phony outrage from my friend opposite is almost too much for me to bear, having 10 reserves in my constituency and he having none.

The contrast between the reserves in my constituency and the thriving agricultural communities around them is very stark. The agricultural communities are self-sufficient, thriving and have a very important difference from the reserve communities: people have property rights. When people have property rights, they generate property taxes. The comparison between how much money is spent by the federal government and students in general is an apples and oranges comparison, because those agricultural communities generate property taxes because they have property rights.

One thing that my hon. friend said that I did agree with is that the Indian Act needs to be changed. I agree that the Indian Act should be changed, to allow private property rights on reserves. The great Peruvian economist, Hernando de Soto, says that the key first step in the development of poor and desperate communities is property rights.

Would the member agree with a move by our government if we decide to do this, to allow private property rights on reserves?

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, that is what this debate really needs: more Eurocentric ignorance from a bunch of redneck hillbillies. That is really helpful.

I once sat with a bunch of women from the Six Nations including Cayuga, Oneida and Mohawk. This is just an example of how insensitivity and naiveté are not helpful. They said that in their community women are not even allowed to run for chief. Everybody shook their heads and said that seemed terrible. However, she said that the men are not allowed to vote. Over thousands of years, they had arrived at a system that worked for them. It may not match the Human Rights Code of Canada, but over thousands of years the women were in charge of electing the chief, even if the women could not themselves run for chief. It worked for them.

One does not impose one's Eurocentric ideas on traditional cultures with thousands of years of history. Home ownership is actually not part of the culture in many communities; more of a co-operative ownership is. Therefore, it is a simplistic example from my colleague who illegally mails into my riding far too often, using his MP's mailing privileges. I am saving all the envelopes to deliver back to him, in Dauphin—Swan River—Marquette someday, all of the propaganda that he fires into my riding, which is 20% first nations by their own self-identification in the last census. That would be 20,000 people who self-identify, so I guess I have quite a few first nations people in my riding too, probably more than he has.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Mr. Speaker, it is indeed a pleasure to participate in this debate today. I want to say at the outset that I will be splitting my time with the hon. member for Edmonton Centre.

Just this morning we saw the results of the good work of the Conservative government when it comes to working with first nations people. We were in the aboriginal affairs committee discussing the Yale First Nation Final Agreement, which involved Chief Robert Hope of the Yale First Nation, the Government of Canada and the Government of B.C. I am hopeful that will move ahead quickly. We saw how it can work when we work together. Certainly, I want to congratulate the Yale First Nation in my riding of Chilliwack—Fraser Canyon for all its hard work over 20 years at the table and finally getting the resolution they have been seeking with their treaty.

I am here today to talk about Bill S-8, the safe drinking water for first nations act. I believe this is an act that fully deserves the support of all colleagues in the House. The proposed legislation would address the serious problem of chronic unsafe drinking water in many first nations through an innovative and collaborative process, which is the key. The proposed process would have first nations work alongside government officials to design and implement regulatory regimes.

A starting point for this work would be the regulations that currently apply to communities adjacent to first nations, which is good common sense. More precisely, this means reviewing provincial or territorial regulations and adapting them to recognize the particular circumstances of first nations communities. We certainly recognize that an Ottawa-based, one-size-fits-all solution is not the solution that first nations need.

Members of this House need to recognize that currently no legally enforceable drinking water and waste water regulations exist for first nations on reserve. This is simply unacceptable. Regulations provide the framework for safe drinking water and waste water systems. They are essential because they map out clear lines of responsibility for each of the many steps required to safeguard water quality, such as source protection, regular quality testing and close adherence to established standards and protocols for water treatment and distribution. This is why regulations are essential for first nations communities. We must safeguard the drinking water for first nations members.

In essence, Bill S-8 is enabling legislation, as the member for Peace River, the chairman of the aboriginal affairs committee, stated earlier. It would authorize regulatory regimes developed through the collaborative process that I have just described. The proposed legislation does not dictate what the regimes must contain.

Unfortunately, some critics have chosen to misinterpret this approach and portray the bill instead as an effort by the Government of Canada to offload some of its liabilities. A closer look at the issue, however, reveals that this is simply not the case.

The truth is that collaboratively developed regulations would clarify the roles and responsibilities of all parties, including chiefs, band councils, water operators, and federal departments and agencies. The Government of Canada has no plan to offload or download its responsibilities to first nations, or to provinces and municipalities for that matter. Bill S-8 aims to engage as many stakeholders as possible in the design and implementation of regulatory regimes that protect the safety of drinking water.

Collaboration has been a defining characteristic of our government's efforts to resolve the issue of first nations access to safe drinking water since the very beginning. Seven years ago, the Government of Canada and the Assembly of First Nations agreed upon a joint plan of action. For instance, both partners appointed members to the expert panel that reviewed regulatory options. Although the panel did not recommend a particular option, it did lay out the benefits and limitation of various options. The panel's final report repeatedly emphasized the need for ongoing collaboration.

Here is an excerpt from that report:

The federal government and First Nations partners should take steps to pare away bureaucracy, collaborate with provinces on tri-partite harmonization, and both simplify and update procurement procedures. Over time, First Nations should take on an increasing share of the activities directly related to planning, procuring and gaining approval for plants.

Bill S-8 proposes to follow the expert panel's advice by authorizing regulations developed with the direct input of first nations and designed to meet the particular needs and circumstances of their communities. The government's approach with Bill S-8 effectively rejects other options that have been considered in the past, such as imposing a single federal regime or merely incorporating provincial and territorial regulations without adaptation. These one-size-fits-all approaches are attractive because they should make it easier and faster to establish regulations and assign responsibilities, but these approaches could never reconcile the significant differences that exist among first nations communities. The truth is that we believe the best solution is to design and implement regulations by working directly with first nations and other stakeholders. This is a bottom-up rather than top-down exercise.

To get a sense of what the process might look like, I draw the attention of the House to an effort led by the Atlantic Policy Congress of First Nations Chiefs Secretariat. Known as the APC, this advocacy and policy group comprises representatives from more than 30 first nations located in the Atlantic provinces. For the last few years, the APC has been studying regulatory options for drinking water.

Representatives of the APC described this work to the Standing Committee on Aboriginal Affairs and Northern Development on May 23. Mr. John Paul, APC's executive director, said the organization appreciates that drinking water is ultimately a health and safety issue. Here is an excerpt of his testimony. He said:

We need to own whatever regulations come out of this, and we need to believe that they're workable and to figure out exactly what we need to do on the human resources side, the governance, and all of those different things.

In an effort to take ownership of regulations, the APC contracted one of Canada's most qualified experts in drinking water, Dr. Graham Gagnon, director of the Centre for Water Resources Studies at Dalhousie University. With Dr. Gagnon's help, the APC has developed a list of the technical benchmarks that could provide the basis for a regulatory regime. Perhaps more significantly, however, the APC and Dr. Gagnon have been working on a new approach to regulating the safety of first nations drinking water. The approach would involve a regional first nation water authority. The authority would be similar to those that other communities in Canada use to help govern public utilities and post-secondary education institutions.

Here is how Dr. Gagnon described the proposed authority to the standing committee:

Implementation of a first nations regional water authority would enable coordinated decision-making, maximize efficiencies of resource allocation, and establish a professionally based organization that would be in the best position to oversee activities related to drinking water and waste water disposal. This would, on a day-to-day basis, transfer liability away from chiefs and councils, and pass it to a technical group.

That is very important. He said this would, on a day-to-day basis, transfer liability away from chiefs and councils and pass it to a technical group. As the quote indicates, the creation of a first nations-owned authority could be a valuable part of the solution, at least for Atlantic first nations. APC continues to investigate this option.

It is impossible to say if all first nations would pursue such an approach, but the mechanism proposed in Bill S-8 would provide first nations with the opportunity to propose and develop solutions that best meet their needs and best protect their communities. As the APC's example indicated, liability would not be downloaded or offloaded to first nations but, rather, options would be developed to address the role and responsibilities of the various stakeholders by region. This collaborative approach is precisely why we should endorse the legislation before us.

Our government fully supports Mr. Paul and the APC as they develop their regulations, and we hope the opposition will realize how important this is and support Bill S-8. The bill would help us move forward and work with first nations to develop regulations that serve them well and help provide safe drinking water for first nations right across the country.

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, I thank my colleague for his fine speech.

Now there is something I would like to know: why did the government ignore the Assembly of First Nations' recommendation to address the issue of safe drinking water for everyone?

Why is the government again calling for the incorporation by reference of provincial legislation, effectively transferring responsibility to the provinces?

How much is this going to cost the provinces? Will the provinces turn to the federal government to ask for money to cover the costs of clean water in aboriginal communities?

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Mr. Speaker, as chance would have it—and I am not sure if the hon. member heard that speech—I did give a riveting speech on incorporation by reference of regulations just last week. I know she was there for that.

We are working closely with first nations to develop these regulations. Certainly, we have been at the table with significant funding to ensure we are providing that infrastructure for first nations, as I mentioned earlier in the debate. Between 2006 and 2014, we will have provided $3 billion in infrastructure upgrades. Since just 2007, nearly 700 projects have been undertaken to provide that critical infrastructure for first nations who do not have it.

We are going to work with the first nations. Again, the government has committed $330.8 million over two years through economic action plan 2012 to help sustain progress made to build and renovate water infrastructure on reserve.

We continue to be there, both with a collaborative approach with first nations and with financial resources to ensure we are providing first nations with the infrastructure they need.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, it is interesting. I have heard a number of the Conservative members make reference to the fact that they are going to work with first nations. I had the opportunity a number of months ago to meet with some members from our first nations community. There is a sense that the government is not working with them in dealing with the legislation itself.

Now the government is passing through the legislation in a way that very much limits debate, opportunities for amendments and so forth, yet, once the legislation passes, we are being told not to worry because the government has set some money aside. It says it will have this legislation and now it will work with our first nations.

My question is related to the credibility issue. In the minds of many first nations, in particular the leaders of first nations, there is this sense that the government has not been working with them in good faith to try to resolve this issue.

How does the member envision his government will fix the damage that has been caused as a result of the bad faith that is there? It is very real. I have seen it first hand. We hear it in committees and so forth. Is there not an issue there that has to be dealt with to build up that trust?

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Mr. Speaker, let me just say that I will certainly put the record of this government on delivering results for grassroots first nations people up against the record of 13 years of inaction of the previous Liberal government.

We have worked together. I mentioned that at the beginning of my speech. We worked together today and debated a treaty in committee, working together with three levels of government to deliver results. There is certainly no broken trust there.

We have also been involved in an extensive engagement with first nations on this issue since we formed government. In the summer of 2006, the expert panel held public hearings across Canada. It heard from 110 presenters. In March 2009, there was a series of engagement sessions with more than 700 participants, of which 544 were first nations. In the winter of 2009-10, we met with first nations chiefs to discuss implementation and engagement during the earlier sessions. From October 2010 until October 2011, we held without prejudice discussions with first nations organizations to address their concerns.

This is a collaborative approach. We are going to continue to work with first nations. We know that working with them will deliver results for first nations communities.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, I am proud to rise to speak to and declare my support for Bill S-8, the safe drinking water for first nations act.

The proposed legislation is based on a thorough review of the considerable amount of evidence available, including numerous reports and studies and testimony provided to parliamentary committees.

I believe that anyone who consulted this material would reach the inescapable conclusion that Bill S-8 must be enacted for Canada to make lasting progress on the issue of safe drinking water in first nations communities.

It is my hope that Canadians do not base their opinions of Bill S-8 on other sources of information, such as the popular media or views expressed by various interest and advocacy groups. Unfortunately, some of these sources present false or misleading information.

In my remarks today, I will identify and disprove many common myths about Bill S-8. The first myth is that the Government of Canada did not consult first nations prior to introducing Bill S-8. This could not be further from the truth. When we examine the facts, we will see that an extensive engagement and consultation process has been under way for more than seven years. Furthermore, this effort would only continue once Bill S-8 has passed, as government and first nations officials would work together to design and implement regulations.

Here are the relevant facts. In 2006, our government, working with the Assembly of First Nations, established an expert panel to hold public hearings to examine potential regulatory options. More than 110 individuals presented to the panel. Another two dozen submitted written reports. Almost all of the submissions and presentations came from first nations groups.

In April 2007, we held a joint workshop together with the Assembly of First Nations and its technical water expert group to engage in the proposed options for regulations and identify any challenges or issues.

In early 2009, we conducted a series of 13 engagement sessions with first nations communities and organizations and with provincial and territorial groups. Of the approximately 700 participants, more than 540 were members of first nations.

In September 2009, government officials met with first nations chiefs and organizations to discuss some of the specific issues raised during the engagement sessions. Starting in October 2010, a series of without prejudice discussions continued for another full year with first nations organizations, and that collaboration continues today. Clearly, consultation has taken place.

A second pervasive myth about Bill S-8 is that it would negatively impact aboriginal and treaty rights. The truth is, however, that this is not the case. Bill S-8 includes a carefully crafted non-derogation clause. In essence, the non-derogation clause included in Bill S-8 would not prevent the government from justifying a derogation or abrogation of aboriginal treaty rights if it is necessary to ensure safety of first nations drinking water.

We believe this clause effectively balances the need to respect aboriginal treaty rights under section 35 of the Constitution Act, 1982, and the need to protect human health.

A third myth is that the Government of Canada would not provide first nations with the money needed to abide by new regulations governing water. Once again, this is absolutely false. Between 2006 and 2014, our government will have invested approximately $3 billion in water and waste water infrastructure in first nations communities.

Last year's economic action plan alone committed $330.8 million over two years to build and renovate on-reserve water infrastructure, and our government has reiterated on multiple occasions in this House, before committee and in writing to every chief in Canada our commitment to provide ongoing financial support for drinking water.

Instead of focusing on what Bill S-8 would not do, members should focus more on what it would do. The bill proposes to finally create a mechanism to develop regulations in collaboration with first nations. Until regulations are drafted, it is impossible to know exactly how much money first nations would need to be able to comply with them. This is precisely why strong collaboration is central to this government's strategy to ensure safe drinking water for first nations.

Our government would continue to provide funding for first nations for their need to participate in a process to design, implement and comply with regulations.

Another myth put forward is that Bill S-8 would incorporate provincial and territorial regulations without adaptations and would give authority to the provincial or territorial governments.

Once again, this is false. Building on and adapting to provincial and territorial regulatory frameworks would not give provinces or territories control over drinking water and waste water systems on first nations lands. Rather it would produce federal regulations that are comparable to provincial-territorial regulations and provide first nations communities and municipalities with opportunities to work together in areas such as training and new technologies.

Adapting provincial and territorial regulations would ensure comparability with existing, well-understood regulations, thus increasing certainty about regulatory standards for users and operators of drinking water and waste water systems. This would allow the government and first nations to use existing provincial and territorial water regulations as a starting point to identify areas that could be used as federal regulations and to adapt them according to the needs of first nations.

Bill S-8 would lead to the establishment of a series of regional regulatory regimes. Each of these regimes would be based on relevant provincial or territorial regulations, but the regulations would be adapted to meet the particular needs and circumstances of first nations communities and would be developed and finalized with first nations.

Closely tied to this myth is another misconception that Bill S-8 would impose provincial or territorial jurisdiction on first nations. In reality, there is nothing in Bill S-8 that would give provinces or territories control over drinking water and waste water systems on first nations lands. The proposed legislation would create federal regimes that use provincial or territorial regulations as a template. That would inspire opportunities for collaboration among first nations and neighbouring communities and municipalities.

Some critics contend that first nations would have no input into what the regulations developed under Bill S-8 would contain. The truth is exactly the opposite. First nations would have a great deal of input into the development of regulations. Our government would work in partnership with first nations and other groups, such as provincial agencies, to develop federal regulations and standards. The regulations would be based on meeting the real-world challenges of providing safe drinking water in a particular region. This approach works. The Atlantic Policy Congress has already been working with government officials on regulatory development. These collaborations will be the foundation of regulations developed under Bill S-8.

The next myth is that Bill S-8 would somehow prevent first nations from initiating and enacting their own regulations, policies and laws on drinking water. There is nothing in Bill S-8 that would take away a first nation's authority to create bylaws under paragraph 81(1)(l) of the Indian Act. In fact, it is possible that a first nation's bylaw could supersede regulations created under Bill S-8. This would occur if the first nation's bylaw established a comparable or superior level of health and safety. Bill S-8 would also allow for the use of existing first nations bylaws, if appropriate.

Finally, there is the myth that Bill S-8 would somehow expose first nations to liability issues. However, regulations developed from this proposed act could add protections against liability by establishing what the limits on liability would be for all parties involved, including first nations. Regulations would define the roles and legal responsibilities of all parties, and in the process, clarify responsibilities related to drinking water. The best options would be developed to address the roles and responsibilities of the various stakeholders by region, because as was said previously by my friend from Chilliwack—Fraser Canyon, there is no one-size-fits-all or cookie-cutter approach. We have 631 first nations, and many of them have unique circumstances.

I call on opposition members to start listening to the facts on Bill S-8. I could say that they are hard of hearing, but that would not be true. I would say that they are probably hard of listening. We would like them to listen to the facts on Bill S-8 rather than to the many myths. If they do this, I am confident that they will not be able to vote against Bill S-8—hope springs eternal—and will finally agree that first nations deserve safe drinking water.

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

Mr. Speaker, I thank the member for his speech.

He wants to talk about the facts, so we will. He is repeating over and over that the government consulted with first nations and that it is a myth that they were not consulted. I would like him to talk about that, since it is important to me. Existing constitutional law requires that the government consult and accommodate first nations. There is the matter of consultation, but there is also the obligation of accommodation. The government must address the concerns raised during these consultations.

I would like to hear the member speak to that. Major aboriginal organizations such as the Assembly of First Nations have expressed doubts about this consultation. I would like to know how he defines consultation.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, consultations take many forms. Consultations on a project like this are obviously ongoing. They are a work in progress. The simple fact is that we have consulted very extensively, on this and other issues, with first nations. We talked about some that I mentioned in my remarks. There were various consultations, where there were hundreds of participants, the majority of whom were first nations. There were various consultations in September 2009 with first nations chiefs and organizations.

We talked about the Atlantic group, which has seen some results from those kinds of consultations. That is the kind of thing we need to do, replicate and adapt to local circumstances in the rest of the country.