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

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, just to pick up on the member's point, it is critically important that families have access to clean running water.

The vast majority of Canadians, 95% plus, as was pointed out, can go to the kitchen and turn on the faucet or go to the washroom, and whether with the toilet or the bathtub, they can turn on the taps and the water will flow.

A good percentage of our population would be surprised that there are hundreds, and actually well into the thousands, of people residing here in Canada who do not have that access to clean running water. It is one of the reasons that politicians tend to want to talk about it. We passed the resolution.

The leader of the Liberal Party introduced a motion last November with all-party support, pointing out the specific situation on reserves and calling on the government to work with first nations leaders to resolve the issue, because a good percentage of those who do not have clean running water live on reserve. There was all-party support for that motion, with the government actually supporting it.

When we look at priorities in meeting the suggestions in that motion, does Bill S-8 really do the job that is necessary?

[Glenn Thibeault, NDP, Sudbury, ON]

Mr. Speaker, I will share my time with the hon. member for Surrey North.

I am pleased to rise in the House today to speak to Bill S-8, an act respecting the safety of drinking water on first nation lands. Specifically, Bill S-8 would provide for federal regulations to govern drinking water, water quality standards and the disposal of waste water in first nation communities. These regulations would set out new criteria regarding provisions including: the training and certification of operators of drinking and waste water systems; source water protection; the location, design, construction, modification, maintenance, operation and decommissioning of drinking water systems and waste water systems; drinking water distribution by truck; the collection and treatment of waste water; the monitoring, sampling and testing of waste water and the reporting of test results; and the handling, use and disposal of products of waste water treatment.

As an elected representative from northern Ontario, I recognize the importance of ensuring that first nation communities have access to clean drinking water. I am certain that there is not a member of the House who would oppose the goal of ensuring this basic right.

I spoke about it earlier to my colleague from Welland. We all remember the crisis in Kashechewan First Nation in 2005, when the community was forced to evacuate due to a contaminated water crisis that left some community members extremely sick and stranded others in communities such as Sudbury for an extended period of time.

I talked about my previous role as the executive director of the United Way and there were many great organizations in Sudbury that provided support to the first nations people from Kashechewan. I had the opportunity to meet some of the families who were staying in a hotel in Lively. The amazement of teenagers, children and even the adults who were there, turning the water taps on and off, is something that has burned into my brain because they had never had that opportunity before. To see them sit there and drink a glass of water out of the taps, it made me think how we take our drinking water for granted. However, in a country like Canada, we need to ensure that our first nations have those same standards.

Unfortunately, although it is one of the most egregious examples of the contaminated drinking water, the case of Kashechewan First Nation is not an isolated incident. Rather, it is part of a systemic problem that affects first nation communities right across Canada. In fact, Health Canada has reported that as of October 31, 2011 there were 124 first nation communities across Canada under a drinking water advisory. These are often issued in remote or isolated northern communities. From my perspective, this is unacceptable in a country with as much wealth as Canada. This is reinforced by the fact that many of these communities are situated in close proximity to resource development projects that net huge gains to mining companies and the government through tax revenues, but often do not provide any assistance to communities living within arm's reach of these projects.

Although ensuring access to clean drinking water for first nation communities is a laudable objective, I am afraid that the legislation would leave much to be desired in terms of the process to achieve the desired outcome. For instance, the regulations put forward under Bill S-8 may incorporate provincial regulations governing drinking and waste water in first nation communities, thereby overriding the regulations set out in the bill. Here, the Expert Panel on Safe Drinking Water for First Nations expressed concern about using provincial regulations since that would result in a patchwork of regulations that would lead to some first nations having more stringent standards than others. Obviously, this would be inherently problematic.

If the intent would be to ensure equitable access to clean drinking water, then implementing a patchwork system, which would have different thresholds for provinces, runs counter to what the legislation would try to achieve. Put simply, a provincial regime of regulation does not do enough to protect first nation communities and appears to be a derogation of the federal government's responsibility to provide basic services to first nation communities.

The derogation of responsibility is underscored by the component of Bill S-8 limiting the liability of the government for certain acts or omissions that occur in the performance of their duties under the regulations. As the federal government is meant to be the primary provider of services to first nation communities, it seems odd that the legislation is attempting to limit the liability of the federal government in situations where it has failed to properly address its constitutional mandate. If the government actually believed that the regulations provided for in the legislation alone would ensure equitable access to safe drinking water in first nation communities, then why is there a need to limit the government's liability when there is a failure in this regard?

This bring us to the most problematic aspect of the paternalistic approach that the Conservatives continue to take when providing services to first nation communities. The crux of the problem with the legislation is that the government thinks that regulation alone will solve the water crisis in first nation communities, yet we know this is not true. In addition to a regulatory overhaul, these communities require crucial investments in human resources and physical infrastructure, including drinking water and sewage systems, and adequate housing.

Supporting this call for increased funding is Dr. Harry Swain, chair of the Expert Panel on Safe Drinking Water for First Nations. Dr. Swain told the Standing Senate Committee on Aboriginal Peoples, in 2007:

This is not, in other words, one of those problems in Aboriginal Canada that will persist for ever and ever and ever. This is one that can be solved and it can be solved with the application of a good chunk of money for a limited period of time.

Further, in 2011, the Department of Aboriginal Affairs and Northern Development Canada commissioned an independent assessment on first nation water and waste water systems. The report clearly states that a significant financial commitment to infrastructure development will be necessary, and that it will cost $4.7 billion over 10 years to ensure the needs of first nation communities regarding water and waste water systems are met. Yet, while the department has called for substantive investments to improve water and waste water systems in first nation communities, the Conservative government has only contributed to these improvements by committing $330 million over two years in 2010 and nothing in 2011.

I would challenge my Conservative colleagues on this shortfall, and although I do expect the inevitable finger-wagging and shouts, I would like to point out that a proactive approach with more substantive upfront investments in clean drinking water would likely be more cost effective than taking a reactive approach in which the government is forced to respond to an urgent public health crisis resulting from the failure to make these investments.

As is most often the case, the Conservative government continues to take a penny-wise and pound foolish approach, which fails to take the cost savings of pursuing a proactive approach into account when making the always difficult choices about what to prioritize in terms of government spending.

In summation, New Democrats agree that the poor standards of water systems in first nation communities are hampering people's health and well-being. It is also causing economic hardships for people living in these communities. This is not a difficult problem to solve. It just requires the political will and necessary investments to get us where we need to be.

[Malcolm Allen, NDP, Welland, ON]

Mr. Speaker, I am pleased to join the debate today on safe drinking water for first nations.

As someone who in a previous career had some sense of responsibility for drinking water facilities in a municipality, I find it incredulous that in this day and age we have communities of people across our nation who do not have clean, safe drinking water, running water or waste water facilities that nearly everyone else in the country takes for granted. These are not people who are living in a cabin for two weeks and draw a pail of water from the closest river or lake because they are looking for the great outdoor experience, if one could put it that way. Rather these are folks who live their daily lives without clean, safe drinking water.

My friend across the way from Medicine Hat, who I like immensely, talked about the fact that the government deserves some credit with respect to spending $3 billion since 2005-06 on safe drinking water for first nations. It did. The difficulty is that there are still 124 first nations communities across this vast nation that still do not have any safe drinking water, not 124 individual homes or individuals. It is not a question of people living in homes inside these communities who in a pinch can go to their neighbours to get some water. They do not have any. That cries out for action.

If it was the case that 124 non-first nations communities across this great land did not have safe drinking water, there would be a heck of a lot of folks not sitting in municipal office for very long since it is the purview of municipalities across the nation, outside of first nations, to govern the safety of the water systems, whether it be for drinking water or waste water.

Clearly this requires some investment. As my colleagues have pointed out, it was reported back to the Department of Aboriginal Affairs and Northern Development, which commissioned the report that was done in 2011, that there was a financial commitment needed in infrastructure beyond what had already been done. Therefore, it is all well and good for the Conservatives to say that they have done that, which is fair, because some work has already been done, but it is not finished. Clearly, the report said that an additional $4.7 billion over the next 10 years was needed to ensure that first nations communities had water and waste water systems that were up to date.

Clearly, the needs with respect to safe drinking water for first nations are not being met, unlike our needs here. Whenever we simply hold up our hand or glass, the page delivers a glass of clean drinking water, and I am grateful to the page for bringing that. We have no issue getting clean drinking water. In fact, it is almost instantaneous. Yet when first nations look for clean drinking water, it perhaps another one, five or ten years, or perhaps not in their lifetime, depending how old they are, before they can go to the kitchen, turn on the tap and drink the water.

That is somewhat incomprehensible for most of us because of where we live. The federal government must know how wrong that is since it has a treaty obligation to ensure that first nations actually get safe drinking water and a waste water system that adequately takes care of all of that grey water that needs to be disposed of and handled correctly so it does not end up polluting a river that people draw water from.

It would seem that we need to start thinking about how to correct this injustice, because it truly is an injustice of a magnitude that I think a lot of us have not turned our minds to. Perhaps that is the problem with this legislation. Perhaps what happened is one did not turn one's mind, when the legislation was drawn, to not just the complexity of it but the magnitude of it, and recognizing that, because of the complexity and the magnitude, it will require funding that is greater than what is offered by the government today.

Ultimately, all of us deserve to have clean potable drinking water and a waste water system that is effective to ensure that our kids are not sick and that our grandparents do not drink bad water because they did not boil it sufficiently. The number of boil water advisories across first nations is another unfathomable statistic.

In my community many years ago, when I was deputy mayor and acting mayor, I received a phone call, which is every mayor's worst nightmare, other than Rob Ford being tossed out by the courts, I suppose. The worst nightmare, other than the death of an employee, clearly, is from the chief engineer of the water system saying that he had just run some tests and it might be necessary to issue a boil water advisory, and that, by the way, as the acting mayor, I would need to go on the radio and make the announcement. If that does not set fear in the heart of an acting mayor, I do not know what else would. Forgetting one's anniversary might be an issue but I leave that to those who have been married for a longer time and who had forgotten an anniversary.

When that happened to me as the acting mayor, I was told that a couple more tests would be run and then I would be called back. I crossed every finger and toe I had, my arms and legs to boot, hoping that the call back from the chief engineer from the water system would be that it was okay, that it was just a bad test, that the testing procedure had failed, that it was a contaminated bottle, that they had retested three times, that everything was good and that we were in the clear.

Fortunately for me, that was the case and I did not have to go on the radio and tell the town to boil water and to boil it for the next couple of weeks until we had cleaned and flushed the entire system. That is what would have had to be done.

We do not have systems here. This is not a question of saying, “Oh, by the way, we will just flush the system out, clean it out and we will go again”. It does not exist in these communities. That is why the extent of the infrastructure money required is as high as it is. I am sure the government side is saying that it is a lot of money. The $4.7 billion investment over the next 10 years is a substantial investment but it is the correct investment. It is a just investment. It is an investment we expect in our communities to the point where we actually have it. We live in communities that expect to have good, safe drinking water.

Here in Ottawa, which provides the drinking water for most of us here, it is safe drinking water, as it is across many of the communities. This is a right we expect and, in fact, take for granted. We turn on the tap, fill up the glass or the kettle to make some tea or coffee and we drink the glass of water or give it to the grandson, son or daughter, mom or whomever, knowing it is perfectly safe, and it is.

Now we must think about the first nations people. In the summer, when it is warm and their children are asking for a glass of water, the parents need to think about whether they have boiled any water lately and, if not, will need to boil some now. The children are thinking about whether they really need to do that because they are at an age where they are precocious little things. Instead, they get their own water and now they are ill because we did not do what we needed to do, which was provide a system that provided safe drinking water in the first place.

It is our responsibility for clean water because it is still under the act for us to have those negotiations. That leads me to the second piece of the legislation when first nations are saying to us that we have an obligation to talk to them about how we would implement these systems under treaty rights. It behooves us if that is the case.

I watched intently earlier this year when the first nations came to the Hill. The Prime Minister met with them, as did the minister and the parliamentary secretary. They talked about going forward with a new spirit of co-operation, dialogue, respect and understanding of our two nations. That is admirable but it is only words if that is all it becomes because here is the test. It is a fundamental test of people, not just first nations people but people in general, to expect to have safe drinking water and a waste water system that is effective and keeps them from getting ill.

When we happen to have that jurisdiction, we then have the responsibility to talk to them under treaty rights, ask them how they want to do this and tell then that we will be a funder of it. That is our obligation and responsibility. We should do that. However, we have an obligation to talk to them about it.

One of the things I found as I researched this piece, not being an expert on first nation treaties, is that it says that any abrogation or derogation from those aboriginal and treaty rights, any infringement of those rights, must be justified in accordance with the test for justifiable infringement enunciated by the Supreme Court of Canada. What do they include? They include whether a measure interferes with a preferred means of exercising a right, whether there has been as little infringement as possible in order to effect the desired results, whether in a situation of expropriation fair compensation is available and whether the aboriginal group in question has been consulted with respect to the measures being implemented.

When we look at the regulation part of Bill S-8, rather than being discussed with first nations and coming to agreement with first nations, it defers to provincial regulation. No one is saying those regulations are bad, albeit in Ontario we had to change our regulations after the Mike Harris debacle of Walkerton. I have seen the regulations but they actually have not been implemented in the province yet. For those who have not read them, I could provide members with a link to the website because it will probably take members about a month and a half to read them all. Even those regulations, if implemented, will put about 40% of the water systems in the province of Ontario out of business because there are not enough qualified people to meet the standards under the regulations, let alone if we imposed that on first nations across the country.

What first nations were telling to us was that we came to them with that spirit in the early part of the year but they wanted to know what happened to the consultation process when it came to the bill. What we know is that there was none.

I am surely not a legal expert, never having been a lawyer. I am not sure being a jury foreperson makes me be a legal expert but I will make a stab at it. In one of the Supreme Court's justifications, it says that whether the aboriginal group in question has been consulted with respect to the measures being implemented would be an allowable piece to let them out from underneath that. We know from the first nations and chiefs across the country that they were not consulted. That being the case, then it would seem that this is not a justifiable exemption in the sense of putting it aside and not talking to them.

It may have been well-intentioned from the minister's side when the legislation was put together to say that since the provinces have good regulations for water we should just use those. The minister should have sat down with the first nations and bargained under the treaty rights. He should have asked them what they thought about the provinces' regulations, which are pretty good and stringent, and that if the federal government provided the essential resources, the money, would they like to use the provincial standards. They may have agreed but we will never know because they were not asked. One should never assume that the answer to a question is yes if one has not asked the question. More important, one needs to discuss the issue because that is an obligation. Unfortunately, we did not do that in this case and that is what the first nations are telling us.

Here we are, at the end of 2012, albeit only a year since the last report was done, where we have 1,880 first nation homes with no water service. There is no such thing as opening the tap, filling a glass and drinking, safe or otherwise, because there is no water in the house. We know there are 1,777 homes that have no waste water. Not to try to be overly colourful, but that really means they have to bucket, because when it is -30° outside one uses the bucket. No one goes outside to the outhouse even if one has an outhouse.

The bill needs some real work. It needs to address the issues that first nations have identified. More so, it needs to address the report that the department commissioned. It received the report which outlined for the department where it needed to go and what it needed to do. Therefore, it was not a question of not being sure what to put in it. The department did its homework and found out was needed but it did not provide a solution. The solution was outlined in the report but it chose to ignore its own report that showed the path to fix the issue that has been here for a long time. If we go back to the nineties we see that 25% of the homes in first nations the drinking water issue was quite reprehensible. By 2001-02, it was 75% homes. It had actually become worse.

The present government was not in power then. It has made a stab at making it better but it could have fixed it if it had followed the report. The report outlined how to do that but the government chose not to. That is what this side takes great umbrage with. It is not the official opposition saying that the government should spend the money. We are simply saying that this is what the report said is the fix. However, first and foremost, it said to speak to the first nation leaders and ask them if this is the fix that they require and want so that in the end they will say how we can fix this issue together.

Would that not be a wonderful result if, at the end of the day, the government could say a few years from now that it fixed this issue? Finally, a Canadian government that said it would fix it and you could stand up and take the congratulations along with first nation leaders for accomplishing it together. That would have been a great feather in your cap but, unfortunately, you let it slide away.

[Niki Ashton, NDP, Churchill, MB]

Mr. Speaker, I appreciate my colleague's raising such important points, in terms of Bill S-8, but more generally the extremely problematic trend the Conservatives have been applying when it comes to downloading critical services onto other jurisdictions without the kinds of supports necessary. It is interesting to hear the government take that approach in various different areas.

We have seen from before that downloading often leads to serious problems, a lack of equality of service and in many cases a phasing out of the service entirely. I can speak to the fact that airports and even the Port of Churchill in my riding have been downloaded onto other jurisdictions and also private entities and we have seen the quality of service suffer as a result of that.

When we are talking, though, about something as critical as safe drinking water, there is no room to gamble with this. It is clear that proper consultation needs to take place. The figures have been made clear as to what kind of investments are needed in order for first nations to have basic safe drinking water. How can we expect first nations young people to excel in school or go on to employment opportunities when they do not have clean water to drink, when they do not have water to wash their hands, when there are not adequate sewage systems available? That is the kind of fundamental piece we are talking about here, not some pie-in-the-sky luxury but basic safe drinking water.

The fact that we are talking about this in 2012, almost 2013, is absolutely shameful. We on this side demand that the federal government step up to its fiduciary obligations, consult with first nations and make the investments that are needed to ensure that all first nations have access to safe drinking water.

[Jasbir Sandhu, NDP, Surrey North, BC]

Mr. Speaker, my colleague was very clear in her excellent speech that on any legislation that needs to be brought forward in the House, the people who will be affected should be consulted. Clearly, that has not been the case with Bill S-8.

In legislation that has come from the government in the last number of weeks in regard to our first nations, about transparency, about land rights, we have seen a downloading of responsibilities to the first nations, but yet there is no investment, there are no resources attached to it.

We have seen the government downloading issues to the provinces, whether it is health care or other responsibilities on which traditionally the federal government has taken a leadership role.

Conservatives talk about investing in our young people. My colleague talked about investing in our aboriginal young people who are the largest young population in our country. Yet we see no investment in housing or in education. Could the member talk about those?

[Niki Ashton, NDP, Churchill, MB]

Mr. Speaker, I am pleased to stand in the House to speak to such an important piece of legislation that will have a direct impact on my constituency of Churchill in northern Manitoba.

I have the honour of representing 33 first nations in northern Manitoba. Many of these first nations have tremendous opportunity. They have the youngest population in Canada. The young people on these first nations are looking toward training and education, opportunities in the job market, the ability to have families and the opportunity to contribute to their communities in all sorts of ways. However, along with these opportunities are some significant barriers and none perhaps is more entrenched than the lack of access to safe drinking water, which a number of the first nations that I represent face. It is obviously a barrier that affects their day-to-day lives in a very real way. It is not a question of comfort; it is a question of basic health.

Aboriginal people as a whole in Canada share a lower life expectancy than non-aboriginal people. I think we would all agree that the fact that first nations people live less than everyone else is shameful in a country as wealthy as Canada. It does not take a rocket scientist to figure out why that is the case. One of the indicators is the lack of access to basic rights, including the right to safe drinking water and the use of safe water systems. That is very much the case with respect to some of the first nations that I represent. I have seen it first-hand.

I want to share the experience of the Island Lake first nations. It is a group of four first nations located on the east side of Lake Winnipeg close to the Ontario border. The Oji-Cree people live there in the communities of Garden Hill, St. Theresa Point, Wasagamack and Red Sucker Lake. These first nations are isolated in that they do not have a road that they can use year round to access their communities. People must depend on the ice roads to get in and out at an affordable cost. The only other option is flying in and out, which is completely out of the reach of the average resident of these communities. It is often only used at the eleventh hour when people either need to see a doctor or need medevac because of an unfortunate urgent incident.

These communities face some of the highest levels of water insecurity. I had the opportunity to visit these communities on many occasions. I even drove on winter roads. The lack of access to safe drinking water is one issue that has come up time and time again.

I also had the opportunity to visit St. Theresa Point during the H1N1 outbreak, which impacted the Island Lake first nations disproportionately. Many medical professionals indicated that the number one reason why more people on Island Lake were impacted by H1N1, and by impacted I mean sent to emergency wards in Winnipeg and other communities, is that they did not have access to safe drinking water. What was so disturbing and disgusting at the time was the federal government's slow reaction to the demands for hand sanitizer and a long-term investment in water infrastructure, when it was so clearly linked to the serious health implications that we were seeing.

Shortly after that the federal government made some basic commitments to the Island Lake first nations. I remember being in Garden Hill when one of those commitments came to fruition in the form of large bins to be used as toilets. Everyone in the House and probably everyone across Canada would agree that is not only an inadequate response but an offensive response, when the day-to-day reality on first nations is one that is so far off the average Canadian's. It is quite clear that inadequate sewage and water systems have held people back on these first nations and continue to hold people back.

It is an issue that has been raised by local and regional leadership. We have seen the federal government respond to these demands in a very inadequate way through the continuous use of short-term and, in some cases, even offensive measures through the sending of bins to be used as toilets.

The fact of the matter remains that these are not issues mired in silence. There are international campaigns that have focused on the plight of the Island Lake first nations and other first nations in Canada, pointing to the lack of water security and the need for immediate action by the federal government.

I want to reference a study that was commissioned by the government itself that found that an investment of $5 billion over 10 years was needed to truly ensure safe water systems for first nations. This also included the need for an immediate investment of $1.2 billion. That study was commissioned by the government itself, so the numbers are clear, stark and significant. This would be an answer to what is perhaps the clearest indication yet that there are still first peoples of Canada living in third world conditions, which is unacceptable.

Instead, however, the Conservatives have only committed $330 million over two years. We saw that in 2010 and no commitments were made in 2011. Now we are in 2012. As we know, as these first nations communities grow, the need to access safe drinking water only grows along with them.

What we have here today is again an inadequate and very problematic response to a very serious issue facing first nations.

We as New Democrats are proud to be able to work with first nations' national leadership, but also regional, local leaders and community band members to say that Bill S-8 is absolutely the wrong way to go.

I want to make another point as well. One wonders how a government could go so far back in time. One only has to look at the kind of legislation the government is bringing forward when it comes to first nations to understand that trend, because Bill S-8 also involves no consultation with first nations. This is not an optional piece. We certainly have learned from our political and societal evolution and the mistakes of the past that if we do not consult with first nations and use a top-down approach, it is the wrong way to go. It simply revives the colonial relationship that Canada for so long imposed on first nations, a relationship that has caused nothing but grief.

We have an opportunity here to break free from that trend and sit down with first nations to not just hear from them or media reports about how bad things are, but also to work to find an adequate solution that works for them. This lack of consultation is extremely disturbing.

The Conservatives have a track record of broken promises. In March 2006 they announced a plan to implement the protocol for safe drinking water for first nations communities. Their piecemeal strategy was not fully implemented and failed to solve the problem. In 2010, the Conservatives introduced Bill S-11 to improve standards for first nations' drinking water quality, focusing on existing provincial regimes, contrary to the preference of its own expert panel and the wishes of the Assembly of First Nations.

Aboriginal groups were also unhappy with the legislation because the government failed to adequately consult them, ignoring first nations' right to self-government and to water and environmental protection. Now the Conservatives are introducing Bill S-8, with only minor changes from previous legislation. Again, I want to reiterate the important point about lack of consultation.

I noted earlier in response to the speech by my colleague from Edmonton—Strathcona that we are seeing this disturbing trend in a host of pieces of legislation when it comes to first nations. The same applies to the matrimonial property rights bill and the first nations transparency bill. First nations have caught onto this and so have Canadians. For us to move forward, however, consultation with first nations is absolutely key.

The Prime Minister himself indicated that he was interested in a new relationship and a new chapter when it came to first nations. It was something he spoke of very clearly in his apology to residential school survivors and those who have suffered the intergenerational trauma of residential schools. Evidently, they are just words because when it comes to action, we are seeing bill after bill seeking to impose a framework on first nations without consultation. However, the government goes even further by imposing some real challenges when it comes to respect for aboriginal rights.

The regulations in Bill S-8 would overrule any laws or bylaws made by a first nation. However, interestingly, the bill would limit the liability of the government for certain acts or omissions that occur in the performance of its duties under the regulations.

Therefore, we see a system with two standards. One is for first nations in taking on a liability without, of course, the necessary support for building infrastructure and human resource capacity to deliver safe water systems. On the other hand, the government is able to run away from its own potential liability. If that is not a clear indication of how unfair Bill S-8 is, then I do not know what is. I believe this to be an indication that the government would pull away from its own commitments. I would also note that this is an option that the government is increasingly interested in as it moves forward in reaching out to first nations.

Another key trend that we are seeing, not just in terms of first nations but also in terms of the provinces, is the Conservative government's zeal in downloading services and responsibilities on other jurisdictions.

Let us look at the example of first nations, the most impoverished jurisdiction in the country bar none. They are not like municipalities or provinces that face challenges. We know that the situation first nations face in terms of lack of resources and capacity is the most extreme. However, the government, through Bill S-8, would like to download a critical service, which it ought to be responsible for, onto first nations without giving them the support they need to ensure they have the right infrastructure and capacity.

That is setting them up to fail. It is the federal government absconding on its responsibility and it really speaks to its lack understanding of its fiduciary obligation to first nations. Perhaps, more broadly, it is a complete lack of vision when it comes to building a better Canada. I believe this is the saddest part of what we are debating here and what we often debate in the House.

The Conservative government, with its omnibus budget bills, and with health transfers and support for post-secondary education and the need for stronger infrastructure programs, is like no other in its desire to pull away from what is fundamentally its responsibility.

We saw a similar kind of zeal under the Liberal government in the 1990s. One would have expected the Conservative government to take note of that kind of approach to governing. The government has taken it to the next level at hyper speed, saying that it has nothing to do with fundamental services that ought to be offered to Canadians. That is something that I and many other Canadians we are increasingly opposed to. The federal government has less and less to do with health transfers, with supporting affordable education and with making sure that our roads are of good quality and that there is adequate infrastructure in communities, and with playing a role when it comes to protecting the environment and with supporting people at the margins of society in achieving a better quality of life and, most specifically, in the context of Bill S-8, with making sure that first nations have access to safe drinking water like any other Canadians. It is a sad state of affairs when the leadership of the federal government pulls away from its responsibility and the concept that a better Canada involves a federal government working with other partners, including in consultation with first nations in addressing the real gap that exists with the lack of safe drinking water in first nation communities.

I know well the experience of first nations communities in my part of the country in northern Manitoba. However, I also know there are many members across the aisle who also represent first nation communities where similar challenges exist, where they see people getting sick because of the lack of safe drinking water and living in abject poverty without the kinds of services other Canadians take for granted. I would ask them what they are doing for those people and why they are letting go of the responsibility they have to ensure that first nations, Métis, Inuit and all Canadians have access to the kinds of infrastructure we all expect in a country as wealthy as Canada.

I am proud to be part of the New Democratic Party that stands with first nations and opposes legislation that re-enacts the colonial relationship and fails to consult with first nations. I am proud to be part of a party that calls for immediate action so that first nations can live in dignity, the way we all deserve to.

[Niki Ashton, NDP, Churchill, MB]

Mr. Speaker, I appreciate that my hon. colleague is well known for her work in environmental activism and being a leader in calling for states and obviously Canada to take a lead role in that area.

The question of ensuring safe water systems has an environmental aspect to it. I am wondering if she could comment on how Bill S-8 fails to ensure environmental sustainability.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I would like to thank the hon. member for her continued advocacy on behalf of the first nations not only within her constituency but across the country.

Indeed, it is a concern that not just the official opposition is raising. New Democrats are raising this concern on behalf of the first nations who have been trying to get the federal government to live up to its commitments under the United Nations Declaration on the Rights of Indigenous Peoples, by which the government has committed to respect and honour the right of first nations to self-determination and self-governance.

At the Crown-first nations gathering this past January, there again was strong language by the Prime Minister of this country on behalf of the government to strengthen and reset the relationship with the Crown and first nations and to move away from the unilateral imposition of policies and laws. Yet in Bill S-8 we see the same old same old.

Frankly, I am stunned given the constitutional obligation upheld by the Supreme Court of Canada on the federal government's duty for advanced consultation, consideration and accommodation of first nations' rights and interests to the peoples and their lands. It is rather stunning that even the government's own environmental legislation requires that the public be consulted when it is developing an array of environmental laws, yet it did not see fit to impose at least that precondition in the promulgation of regulations under the bill.

Overall, there was some movement, grudgingly, toward consultation on Treaty 6, Treaty 7 and Treaty 8 in Alberta, but that was because first nations remonstrated so strongly that they needed to be consulted.

[Niki Ashton, NDP, Churchill, MB]

Mr. Speaker, I would like to thank my colleague for raising key points here in the House as to why we oppose Bill S-8.

I wonder if she could elaborate on a very disturbing trend we are seeing from the government with regard to first nation legislation and the lack of consultation, not just in the context of Bill S-8 but also when it comes to matrimonial property rights and first nations' accountability. I would like to hear the member's comments on how she views this approach.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I appreciate the opportunity to sum up the address I provided on the bill. As I mentioned in my comments last week, there is a lot of support for moving forward on an expedited and complete action to provide safe drinking water to first nation communities, as other Canadians have taken for granted for many decades. We are fully in support of the government finally moving forward and expediting action on this.

The problem is that the bill is in fact hollow. There is no substance whatsoever to Bill S-8. All of the substance will come in the regulatory agenda that is provided for in the bill. All of that action will proceed presumably in consultation with the first nations but there is no provision in that bill requiring that the government consult directly when developing and implementing those regulations with the more than 600 first nations that will be impacted.

Second and more important, the Auditor General, the expert panel that previous governments appointed to address this outstanding problem, the first nations and the organizations that represent them have been very clear over the past decades that we cannot enact legislation that will transfer liability and responsibility to first nation communities to deliver their own safe drinking water programs, if the appropriate and necessary resources are not transferred at the same time.

I am sad to say that we do not see anything in the current budget or the supplemental dollars that will enable either the necessary consultation with the first nations on developing and implementing the regulations, or the installation, operation and maintenance of the necessary mechanisms to provide the safe drinking water.

As I mentioned, there are a number of additional problems with the legislation, which hopefully can be addressed in committee. Some of those include the fact that there is a failure to establish the regulatory and operational advisory bodies recommended by the expert panel and by the first nation interveners before the Senate. Those include the first nation water tribunal and the first nation water commissions, which would genuinely provide a voice to first nations to work alongside the federal government in actually implementing this legislation, or in implementing their own regime.

That is another error in the legislation pointed out by the head of the Assembly of First Nations. There is no recognition in this legislation that the first nations themselves may already have a regime for safe drinking water or may choose to go down the path, with assistance from the federal government, of implementing their own regime.

There are also problems with the non-derogation clause, which one could shoot a cannon through, a huge exemption. Clause 7 also provides a potential conflict with section 35 of the Constitution, where it would allow federal regulations under Bill S-8 to prevail over first nation laws.

In closing, I would like to share a very strong comment by National Chief Shawn Atleo of the Assembly of First Nations in his submission to the Senate in their review of Bill S-8. After going through a number of these additional concerns, where he welcomes some action finally by the government, he remonstrated with them for these kinds of concerns and also for the failure to consult. He said:

Bill S-8, as part of ongoing process started with Bill S-11 prior to the [Crown-first nations gathering], continues a pattern of unilaterally imposed legislation and does not meet the standards of joint development and clear recognition of First Nation jurisdiction. The engagement of some First Nations and the modest changes made to the Bill do not respond to the commitment to mutual respect and partnership envisioned by the [Crown-first nations gathering].

As I shared at the outset of my speech last week, even the first nations in Alberta, in Treaty 6, Treaty 7 and Treaty 8, while they expressed gratitude to the minister for finally coming back and consulting them in greater detail, said very clearly that they did not think it was appropriate to move forward until there was the adequate funding and an undertaking to directly engage them in the development of the regulations.

[The Acting Speaker, Conservative, Bruce Stanton]

When we last had debate on Bill S-8, the hon. member for Edmonton—Strathcona had four minutes remaining in her remarks.

The House resumed from November 22 consideration of the motion that Bill S-8, An Act respecting the safety of drinking water on First Nation lands, be read the second time and referred to a committee, and of the motion that this question be now put.

Committees of the House

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Mr. Speaker, very briefly, I am a bit dismayed that my colleague across the way seems to have missed the part that I said for emphasis about the concern that we have around the committee. He suggested in his last point about the moot nature of amendments coming from committees. Some of the committees were given one committee meeting to hear from a couple of witnesses, view all of the clauses of the bill that were proposed, somehow formulate those amendments in the committee, and then vet those amendments and pass them on. Some committees did in fact move amendments.

My point is that in the instruction that came from the finance committee, it says quite explicitly in section (c), “any amendments suggested by the other Standing Committees, in the recommendations conveyed pursuant to paragraph (b),” which was all of the sections before, “shall be deemed to be proposed during the clause-by-clause consideration of Bill C-45”. It is a committee instructing a whole set of other committees to move clauses that were then deemed to be accepted as if they were moved at that committee. Committees do not have the power to do this. Only the House of Commons can convey this power upon a committee.

I would argue that this has been a disaster from the start. Initially the government said it would not split any of the bill. Then it split off MP and senators' pensions. Then, by a mistake of the Liberals, it threw 450,000 public pensioners into that submission as well, which was then changed again. We created a whole new Bill C-46, which was then passed on through the Senate for royal recommendation.

The finance minister said we were not splitting the bill. Then we get to committee and they have this cockamamie motion that sends all sorts of instructions to other committees and asks them to move amendments to clauses of the bill that they were not given time to study, with a minimal number of witnesses, and then to move those amendments back to the committee as if they had existed there, as if somehow the House of Commons had instructed them to do that.

We gave the Conservatives that option. We gave them the option to move the bill through in a timely fashion. The member talks about some sort of congressional system in the U.S. where budget bills go to the eleventh hour. We gave the government assurance of a timeline. We gave it a section of the bill to be carved out and studied properly because that is the whole function of Parliament, to hold the government to account. The government refused it and said that instead we would have this system in which we endow the finance committee with far more powers than anyone ever imagined.

If this is allowed to go on, in the future we could then say that committees are allowed to take far greater instruction, to break all of the precedents that this place guides itself by and to start instructing amendments to come from different places, instructing committees to study bills whether they want to or not, and then that all comes back to one committee, which somehow has become powerful.

In terms of the last point, that every bill, every consideration of this place has to do with the economy and therefore the finance committee, under some perverse notion by the House leader of the government, would then have to study every bill brought forward. Of course that is not what we are talking about. It is appropriate for Bill S-8 to go to the Indian affairs committee. It is appropriate for bills that have something to do with the environment to go to the environment committee, which was our point from the beginning.

The problem with the omnibus bill is that it crowded together so many various issues, which Conservatives used to say was a bad idea when they were in opposition. Now suddenly they are in government and they think omnibus bills are the best thing and start to create the largest ones in Canadian history and jam everything together. It does not work. It does not allow Parliament to perform its function for the people that we represent.

Clearly, there is a great deal of detail and procedural orientation to this, but if the government House leader chooses to ignore the most fundamental and foundational point of this point of order, then he is choosing to be blind to the fact of what his government and the finance minister created when they made this mess of a monster omnibus bill.

Safe Drinking Water for First Nations Act

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, the members should calm down. They are cutting into my time. I know all the members, especially those on the other side, and especially the Minister of Foreign Affairs, are waiting with bated breath for my comments.

I thank my colleague from Timmins—James Bay for his heartfelt grounded intervention on behalf of his first nations constituents.

There are a number of members in the House who have first nations communities in their ridings. I know they stand with me, no matter what party they are in, in that it is time for us as a nation to stand up and look after their interests so they can be treated equably as all other Canadians. The member for Timmins—James Bay has been an incredible advocate for those constituents.

Bill S-8, the safe drinking water for first nations act, has been a long time in coming. Regrettably, it continues to be the policy of the government not to bring important legislation, in a timely manner, before the elected House. Instead, for the second time in a row, it tabled the bill first in the Senate.

Now the Conservatives are trying to object to the fact that we might actually want to propose changes to the bill, changes that have come to our attention by the first nations themselves. It is absolutely reprehensible. It shows a great disdain for Canadians who have chosen to elect us and send us to this place.

First, it is important to consider that the provision of safe drinking water for first nations is a federal responsibility. This is not a responsibility that the federal government can slough off to the provincial and territorial governments.

Second, no federal laws exist to regulate safe drinking water or waste water in first nations communities, so we have a complete vacuum. This is unlike the provinces and territories, where they have seen cause to step up to the plate and put in place regimes to protect those for whom they are responsible so they can live in the modern world.

Another appropriate starting point is to clarify the state of drinking water in first nations communities. The current update posted on the Health Canada website reports that as of October 31, 122 first nations communities across the country remain under a drinking water advisory. That means 122 first nations communities cannot go to the tap for a glass of water. It is absolutely reprehensible in the 21st century. That is 122 communities and countless numbers of aboriginal children, elders, people who risk illness from contaminated drinking water in 2012. It is simply unforgiveable.

It is not just me or my colleagues on this side of the House who say it is unforgiveable. In her final audit report in 2011, former Auditor General Sheila Fraser called for even deeper reforms to ensure that first nations on reserve were accorded the services comparable to other Canadians, including access to safe drinking water.

Mrs. Fraser identified that structural impediments to improve access to these basic services, which most other Canadians take for granted, must be resolved if we were to see real results. These include not only a legislative base or program, which is what the government has presumably put forward, but also clarified service levels, commensurate statutory funding, an end to the reliance on policy or contribution agreements and support to organizations that support service delivery to first nations.

For example, the Alberta Technical Services Advisory Group has for many years supported the first nations in addressing problems with their drinking water systems. I might point out that those are the very kinds of organizations the government has chosen to cut back in the budget.

It is very important what Sheila Fraser had pointed out. To this point in time, in this day and age in the 21st century, first nations communities have to wait, with open hand, for the government to decide from year to year whether they will have sufficient funds to provide a glass of safe drinking water for their children. She said that it was beyond high time that this obligation to transfer the necessary money be imposed by statute and be obligatory. We do not find that in Bill S-8.

The government made a previous half-hearted effort at proposing legislation and then let it die on the order paper.

Bill S-11, also tabled in the Senate in 2010, was roundly criticized by first nations and legal experts. Bill S-8 was also first tabled in the Senate and now finally brought before the House.

Regrettably, there has been little parallel action on the other measures needed to address the critical need for safe drinking water supply in first nation communities.

It should be pointed out that the government is well aware of the core barriers experienced by the majority of first nations in providing safe drinking water supplies to their communities, including: the equipment, construction and maintenance facilities, especially in remote areas, is costly; much of the necessary infrastructure is either lacking, obsolete or of poor quality; there is a limited local capacity or limited ability to retain qualified operators and even when they are trained, they then move on to other communities where they can be paid better; and, limited resources to properly fund water system operation and maintenance.

The current federal budgeted amount of $330 million over two years offers only a small percentage of the $4.7 billion capital costs and estimated $419 million per year to upgrade and run drinking water systems in compliance with the intended law.

If this intended law is passed, there will almost immediately be an obligation by all the first nations to deliver safe drinking water. I say almost because the government fails to mention that the law absolutely has no substance, so it will take five to ten years to actually develop these regulations. Once that is in place, then we will have close to a $5 billion deficit, with no undertaking that it will provide that.

No new moneys have been committed for the promised direct negotiations with the first nations on the strategy to implement the proposed law or for the promised negotiation process on the myriad of complex and technical regulations necessary to give any real substance to Bill S-8. There is no indication that the government has begun to move away from the one-off contribution agreements to long-term financial commitments to finance drinking water systems, as recommended by the former auditor general.

Far from delivering the support for organizations that can support first nations in developing and managing effective drinking water, in this budget the government has cut back support to these entities, including treaty organizations that provide support on technical and policy matters to first nations, which brings us to the matter of consultation on the bill.

The duty to directly consult first nations on legislative or policy matters that affect them is not a mere nicety. Aboriginal Canadians are not mere stakeholders in this legislative process. The duty to consult and accommodate is a constitutional duty established in legal precedent echoed in the UN Declaration on the Rights of Indigenous Peoples, which Canada finally endorsed.

At the January Crown-First Nations Gathering, the government publicly committed to support first nations self-government to strengthen and reset the government-to-government relationship and to move away from the unilateral imposition of laws and policies.

Self-government was endorsed under the UNDRIP. However, at the last minute, we saw some move, despite calls by first nations over decades, of the minister to met with at least one treaty group in Alberta.

I will quote a comment made at the Crown-First Nations Gathering on the consultation process, which states:

At the recent Crown–First Nations Gathering, First Nations and our Government committed to working together to support strong, healthy First Nation communities...[The bill] is a key milestone in making this a reality...

That statement was made by the Minister of Aboriginal Affairs and Northern Development, who said that the process for the consultation on Bill S-8 was a milestone in making the government-to-government relationship a reality. Yet we have a statement from the Assembly of First Nations stating that the government has continued a pattern of unilaterally imposing legislation that does not meet the standards of joint development and a clear recognition of first nations jurisdiction.

This so-called exceptional process of sitting down and reviewing proposed legislation was in fact the common practice of most past governments. In many instances, white papers or even draft formats of bills were circulated and consulted to ensure that the interests of all 600 first nations, not just one first nation, were considered and accommodated. This made for sound, supported, workable legislation. Again, in the case of the first nations, this consultation is an obligation, not just an option.

Even when late in the day some discussions did occur with first nations, they expressed concerns that their issues had not been fully addressed. They were also clear that the process did not constitute “consultation”. This is made evident in testimony before the Senate on the bill.

By way of example, Treaty 6, 7 and 8 testified that while a limited number of their representatives had a chance to review the bill, incidentally, less than a week before it was tabled in the Senate, a number of significant outstanding concerns were yet to be addressed. I reference these three groups as they were among the few that the minister finally relented to discuss in more detail their concerns with the proposed law before it was tabled.

In his testimony, Charles Weaselhead, Grand Chief of the Treaty 8 First Nations Chiefs Association, echoed the views of many when he said that “support of the Alberta Chiefs is not unconditional” and that first an agreement must be reached “on an adequately funded joint process for the development of the regulations”.

We have members of the one group, which the minister actually took the time to hear what their issues, saying that it is not enough. What they need at the same time is the commitment of the money.

Further, Grand Chief Weaselhead said:

Second, the national engineering assessment identified that only three First Nation systems in Alberta are operating safely with certainty....About a dozen systems in Alberta pose significant risks to human health.

He advised that about $160 million was needed to update facilities just for Alberta.

He testified that while they were willing to be patient, their patience was not limitless. He said, “the Government of Canada must also make a firm commitment toward infrastructure, monitoring and capacity”.

They have yet to obtain any binding commitment to a regulatory development process that is well-funded and approved by the chiefs and no commitment of the $140 million funding gap identified by the National Engineering Assessment for just Alberta.

I now wish to share a number of the serious deficiencies identified in the bill itself as a safe drinking water regulatory framework.

Frankly, I am stunned that the government has stated at this stage that it will not allow amendments. This kind of questions the value of even having a committee and bringing in these first nation and legal experts again.

However, these are some of the issues that were raised before the non-elected house. Many of the issues were raised by expert panels and legal experts testifying in the Senate and in previous government reviews, treaty organizations and individual first nations.

The main purpose the bill appears to have is transferring liability from the federal government to first nations for delivery of the drinking water regime. Of equal concern is the fact that the full long-term costs and liability have yet to be calculated. The transfer of liability would be made with no binding commitment that the federal government would provide the necessary funds for technical training or equipment. However, Bill S-8 carefully imposes limits on the liability of federal ministers and officials.

Bill S-8 is essentially lacking in substance. It would merely be an enabling law. It would allow for, but does not require, any federal action to promulgate the myriad regulations necessary to establish drinking water standards, public hearings, appeal procedures, standards for training and certification of water systems and operators, waste water disposal, emergency response and so forth.

The law would impose no obligation on the federal government to deliver these rules in a timely manner. It would impose no obligation on the federal government to finance development or implementation of the first nations drinking water regime. Despite the non-derogation clause, Bill S-8 may have as its key purpose to transfer away treaty and constitutional obligations in this regard.

Incredibly, the law would impose no requirement for consultation with the first nations in the promulgation of these rules, regardless of the overriding constitutional duty to consult and despite the fact that most laws enacted these days, especially for environmental matters, specify that the government must in advance consult.

Finally, the bill ignores the advice of the very expert panel appointed by the federal government, which recommended the establishment of two independent entities to provide direction and oversight on the water regime.

A first nation water commission was recommended. It was to be mandated to oversee the licensing and operation of water facilities and to advise the ministers and first nations. The second entity recommended was a first nation water tribunal mandated to hear appeals on water approvals and investigate complaints. It was suggested that entity could provide one of the bridges to self-governance over water, which has been promised.

As pointed out by the Assembly of First Nations in their brief to the Senate, despite appreciation expressed that the government provided a slightly stronger non-derogation clause it appears to include a broad loophole in the words “except to the extent necessary to ensure the safety of drinking water on first nation lands”.

The obvious question arising is: Who decides that? Consistent with the remainder of the bill, it appears it would be the minister.

Another issue is that, astoundingly, the bill imposes no obligations on the federal government to consult first nations in the promulgation of any of the implementing regulations. This not only runs contrary to most environmental laws, as I said, but to their constitutional obligation.

Concerns have been raised with the option of incorporation by reference of provincial regulations. This has not been a common practice and serious concerns have been raised by a number of legal experts.

It is incumbent on the government today to admit that the law is not enough. It must, today, commit that it will not enact this law until it has provided the resources necessary to genuinely implement the long overdue protections for first nation water.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, Bill S-8 would basically transfer responsibility, that is, it would transfer liability, to communities that have been calling out for years for resources to ensure that they will have safe and adequate drinking water. To New Democrats this bill seems to be aimed at cutting off a whole segment of Canadian society, a segment of Canadian society that is being denied basic water rights and safety in their communities. First nations will now told that they are responsible for anything that goes wrong, but will not have the resources to address that.

We see from the 2011 release of the national assessment of first nation water systems that over 39% of first nation communities in Canada are at high risk, meaning there is a threat to human health, and 34% are at medium risk. The shortfall is going to be $4.7 billion over the next 10 years.

Why does my colleague think the government did not bring this forward in a throne speech where it would have set out a clear commitment to clean drinking water and resources, and why is it proposing to basically leave--