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.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, now that we have been sitting for a week under our Conservative government's plans for a harder-working, productive and orderly House of Commons, I would remind all hon. members of what we have been able to achieve since just Victoria Day.

Bill C-48, the technical tax amendments act, 2012, was passed at report stage and third reading. Bill C-49, the Canadian museum of history act, was passed at second reading. Bill C-51, the safer witnesses act, was passed at report stage and we started third reading debate, which we will finish tonight. Bill C-52, the fair rail freight service act was passed at report stage and, just moments ago, at third reading. Bill C-54, the not criminally responsible reform act, was passed at second reading. Bill C-60, the economic action plan 2013 act, No. 1, was reported back from committee yesterday.

Bill S-2, the family homes on reserves and matrimonial interests or rights act, was passed at report stage and we started third reading debate. Bill S-6, the first nations elections act, was debated at second reading. Bill S-8, the safe drinking water for first nations act, which was reported back to the House this morning by the hard-working and fast running member for Peace River, has completed committee. Bill S-10, the prohibiting cluster munitions act, was debated at second reading. Bill S-12, the incorporation by reference in regulations act, was debated at second reading. Bill S-13, the port state measures agreement implementation act, was debated at second reading. Bill S-14, the fighting foreign corruption act, was debated at second reading.

We will build on this record of accomplishment over the coming week.

This afternoon, as I mentioned, we will finish the second reading debate on Bill C-51. After that, we will start the second reading debate on Bill C-56, Combating Counterfeit Products Act.

Tomorrow morning, we will start report stage on Bill C-60, now that the hard-working Standing Committee on Finance has brought the bill back to us. After I conclude this statement, Mr. Speaker, I will have additional submissions for your consideration on yesterday's point of order.

After question period tomorrow, we will get a start on the second reading debate on Bill S-15, Expansion and Conservation of Canada’s National Parks Act. I am optimistic that we would not need much more time, at a future sitting, to finish that debate.

On Monday, before question period, we will debate Bill S-17, Tax Conventions Implementation Act, 2013, at second reading. In the afternoon, we will hopefully finish report stage consideration of Bill C-60, followed by Bill S-2 at third reading.

On Tuesday, we will return to Bill S-2 if necessary. After that, I hope we could use the time to pass a few of the other bills that I mentioned earlier, as well as the forthcoming bill on the Yale First Nation Final Agreement.

Wednesday, June 5 shall be the eighth allotted day of the supply cycle. That means we will discuss an NDP motion up until about 6:30 p.m. This will be followed by a debate on the main estimates. Then we will pass to two appropriations acts.

Next Thursday, I would like to return back to Bill C-60, our budget implementation legislation, so we can quickly pass that important bill for the Canadian economy.

Aboriginal Affairs and Northern Development

[Chris Warkentin, Conservative, Peace River, AB]

Mr. Speaker, I have the honour to present, in both official languages, the seventh report of the Standing Committee on Aboriginal Affairs and Northern Development, entitled Bill S-8, An Act respecting the safety of drinking water on First Nation lands.

The committee has studied the bill and has decided to report the bill back to the House with amendments.

[The Chair, Conservative, Chris Warkentin]

Thank you, Ms. Crowder.

I do have a ruling with regard to this amendment.

The proposed amendment NDP-14 aims to amend the preamble of Bill S-8. As the House of Commons Procedure and Practice, second edition, states on page 770:

In the case of a bill that has been referred to a committee after second reading, a substantive amendment to the preamble is admissible only if it is rendered necessary by amendments made to the bill.

In my opinion, no amendment has been adopted to warrant this amendment, and therefore it is inadmissible.

Considering the preamble unamended, shall the preamble carry?

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

Thank you, Mr. Chair.

Again, with regard to the suggested changes to the preamble, this is with respect to the issue around a water safety plan. We've outlined a number of elements that would be important to include as sort of setting a framework for where this legislation goes, such as, for example, looking at international best practices for supplying safe drinking water, relying on consistent and efficient operation of water treatment and distribution facilities, and looking at sources and the effective drinking water safety plan.

As well, we're emphasizing that the issue around consultation is really important, because the preamble talks about “working with First Nations”, yet we had the experience that the First Nations of Alberta Technical Services Advisory Group indicated. When they were asked to put together an impact analysis report, which was submitted to Indian and Northern Affairs in 2009, they had no feedback on that. They indicated that Bill S-8 was developed without any meaningful input “from first nations leaders, communities...or water system operators in Alberta”.

So there's little comfort that the regulations will actually be developed “in consultation”, given the track record with developing this bill, and I would encourage members to support our changes to the preamble.

[The Chair, Conservative, Chris Warkentin]

Unfortunately, I won't let them get there. I do have a ruling with regard to this amendment.

Bill S-8 provides, in clause 7, that the regulations made under this provision prevail over any laws or bylaws made by a first nation. The proposed amendment provides that the laws or the bylaws made by the first nation prevail over the regulations made under the provisions of Bill S-8. As the House of Commons Procedure and Practice, second edition, states on page 766:An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

In the opinion of this chair, the amendment tends to introduce a new concept that is contrary to the principles of Bill S-8, and therefore it is inadmissible.

(Clause 7 agreed to)

The NDP has a proposal in amendment NDP-11 for a clause 7.1.

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Mr. Chair.

I appreciate the member's contribution to this particular amendment. I want to be clear that according to the World Health Organization, its water safety plan approach is based on risk assessment, prioritization, and management of the water supply. Bill S-8 is enabling legislation with language worded in broad terms so regulations can be created to address a variety of needs.

As it's currently written, Bill S-8 does not prevent the adoption and implementation of the water safety plan approach. The government is committed to work with first nations and other stakeholders to develop federal regulations tailored to the needs of each region. That has been equally clear here at committee. Bill S-8 allows regulations to be adapted to the local context and determined in close collaboration with stakeholders and includes allowing communities to incorporate a water safety plan approach.

The adoption of this clause, in combination with other proposed amendments dealing with water safety plans, would allow the regulations developed under Bill S-8 to require that all first nations adhere to a water safety plan approach. This would reduce the flexibility of the legislation and could limit the potential for regulations to be tailored to the specific needs of first nations in respective regions.

Thank you, Mr. Chair.

[The Chair, Conservative, Chris Warkentin]

I do have a ruling here, as you are aware. I think the NDP have been notified of this intention.

The House of Commons Procedure and Practice, second edition, states on page 766, “An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.” Therefore in the opinion of the chair the amendment attempts to introduce a new concept that is beyond the scope of Bill S-8, and therefore it is inadmissible.

(On clause 4—Recommendation of Minister)

Moving to clause number 4, we have NDP-3.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Thank you.

In support of our amendment, I'd like to refer you back to the Canadian Bar Association.

They specifically said:

While the wording about section 35 of the Constitution Act, 1982 in the previous Bill S-11 has been revised, section 3 of S-8 remains problematic. We believe that the qualification “except to the extent necessary to ensure the safety of the drinking water on First Nation lands” is in itself an explicit abrogation or derogation of existing Aboriginal or treaty rights pursuant to section 35 of the Constitution Act, 1982. The qualification in section 3 of Bill S-8 does not, in our view, ameliorate the constitutional problems identified in our earlier submissions on Bill S-11.

Then it goes on.

Obviously, this is coming from the Bar Association. Maybe the legal representation would like to comment on this as well.

[Greg Rickford, Conservative, Kenora, ON]

Thank you.

I appreciate my colleague's input on this matter. The non-derogation clause included in Bill S-8 addresses the relationship between the proposed legislation and the protection of aboriginal and treaty rights under section 35 of the Constitution Act, 1982. This clause specifically excludes from its scope any derogation or abrogation that is necessary to ensure the safety of first nations' drinking water.

Under Bill S-8, to be clear, a regulation could be created to limit activities on first nation lands around sources of drinking water in order to reduce health and safety risks of first nations being exposed to contaminated water. Thus, in the regulations, the rights of first nations to use land in certain ways may need to be infringed in accordance with the Supreme Court of Canada test for justification.

If this clause were changed to a non-qualified non-derogation clause, as has been proposed, it may restrict the protection of source water on reserves. As demonstrated in previous Supreme Court rulings, legislation can validly affect the exercise of aboriginal rights if it meets the test for justifying interference with a right. That was set out in R. v. Sparrow. Including this non-derogation clause is meant to support the objectives of the bill, and in particular, the protection of source water on reserves.

Thank you, Mr. Chair.

[The Chair, Conservative, Chris Warkentin]

Thank you for being here this morning. We appreciate your willingness to join us.

Colleagues, pursuant to the order of reference of Wednesday May 8, 2013, we'll now proceed to the clause-by-clause consideration of Bill S-8, an act respecting the safety of drinking water on first nation lands. Pursuant to Standing Order 75(1), consideration of clause 1, which is the short title, and the preamble are postponed.

We'll move on to clause 2, where some amendments have been proposed. We can only consider this if.... The amendments to the interpretation section of this bill can occur only if amendments have been adopted to warrant amendments in this part of the bill, so we will deal with clause 2 after we deal with the consideration of the schedule.

(On clause 3—Aboriginal rights)

We'll move to clause 3, where we have amendments NDP-1 and Liberal-1. These amendments are identical. We'll turn to NDP-1. If NDP-1 is adopted, we will obviously not hear from Liberal-1. If NDP-1 is defeated, Liberal-1 will be also.

Jean.

[The Chair, Conservative, Chris Warkentin]

Colleagues, I want to thank you for being here this morning. We are continuing our consideration of Bill S-8 today in this 76th meeting of Standing Committee on Aboriginal Affairs and Northern Development.

Today we are joined by departmental officials who will be here for our assistance if necessary. Feel free to turn to them if in fact there is a question that they might be able to help you with as it relates to the consideration of the legislation we have before us.

If our officials will introduce themselves, we'll do that and then get into clause-by-clause.

First Nations Elections Act

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, I have the opportunity here, quite late on Tuesday night, to speak to this particular bill.

It has been my viewpoint over the past two years on the aboriginal affairs committee that the Conservatives really have not been consulting in the correct fashion with first nations across the country. They come in with the wrong attitude. What we really need is to have first nations design the legislation that they would like to see enacted for their governments, their people and their nations. We can then take that in Parliament and understand how we can amend it so that it works.

However, we have the opposite way and we saw that with the accountability act, an act that really was an unfortunate piece of goods that came from the government. It was universally condemned by first nations. They did have a couple of supporters there, but they were some very specific people who had problems in their own particular communities. Those who understood the nature of the first nations-Canada relationship rejected the accountability act.

We are now at Bill S-8, the safe drinking water act, which we would think that everyone could get behind and support. However, once again, we see that the method of consultation and delivery of these bills is simply not working. The Conservative government is not providing the first nations with the opportunities to design the legislation so that it works for them. In this case, with the Senate putting forward Bill S-8, we also have the additional problem that we cannot make requirements for resources to ensure that first nations can actually meet standards that they would all want to meet.

The history so far of the majority government has been of one that refuses amendments. I think of Bill C-47, when we put forward some 45 amendments on a bill that only affected Nunavut and the Northwest Territories. Of those 40-some amendments, the Conservatives turned down all of them, even though the amendments were designed to make the bill work better. They were not coming from people who had great opposition to the bill. They were coming from people who were concerned that the bill should work right.

In other words, once again the Conservatives failed to provide a methodology of consultation that delivered a product that people could get behind. I see that this pattern is being repeated with Bill S-6. The Conservatives did go into some consultation. They did hold meetings with first nations. They got recommendations from first nations about how this bill should be set up. The problem is that when the bill showed up, those recommendations were not carried forward in the fashion that the first nations had assumed.

We can see that in the problem with the Assembly of Manitoba Chiefs. The first Grand Chief, who was involved in the consultation side of it before the bill was put out, was pretty happy with what was going to happen. He said that, but then when the bill arrived in the Senate, the Manitoba Chief that I quoted in my question to the parliamentary secretary said, "no, that is not what we are after".

The consultation process is wrong. The consultation process does not deliver the goods for first nations. That is the problem here and the government has to change its direction in order to make legislation that truly represents first nations' points of view. The legislation is for the first nations. This legislation does not affect other people in Canada. The legislation is for the governments of the first nations. Therefore, it should really have those elements as the prime elements within the legislation.

That seems to be simple. We are not here to force our way upon other governments. We are here to provide guidance and accommodation and to make the system work.

Conservatives have a different view. They view it from that economic development lens. We heard the parliamentary secretary say that. Implicit within all the work that the Conservatives are doing is the idea that economic development for the first nations is the most important element. The most important element is not what the first nations want, not what the first nations deserve, but what will make economic development work. That is the Conservatives' point of view.

What we see in legislation over and over again is that message. What is important for economic development is the primary thing that we will see in legislation that comes from the Conservatives on first nations issues. If first nations go along with that, and the government can get some to go along with that, those will be the quotations that are used. Those will be the validations that Conservatives seek.

What really is needed? We really need to listen to the first nations. This legislation is for them, it is not for us. It is not telling us how we are getting elected. It is working with the first nations to come up with a system that they endorse, that they want for their very valid self-government efforts.

In the consultation process there was probably a little more give, a little more understanding, but when it came back to Ottawa, the changes were made to ensure that it worked for the government and it plans. That is the reality of what we are dealing with.

We have trouble with the bill. We also have trouble supporting it at second reading and taking it to committee. We have done this over and over again, but we are not getting any results. We are not getting the government to come onside for valid amendments to bills.

That is the process by which we all want to engage in here. This is what we want to do at committees. We want to have the opportunity to take what the people want, take what the government wants, come up with some compromises. We do not want this hard line attitude about the committees and about how amendments are dealt with at committees. That is not working for us. What we are saying is that will oppose this bill at second reading because it does not what the first nations want.

It is a tragedy that we cannot take the bill to committee with some kind of assurance that some of the important elements that need to be fixed in the bill will be fixed. However, when we beat our head against the wall and do not get results, then we should quit beating our head against the wall. That is sensible.

We can fight it here in Parliament. We can go to committee and hear the witnesses who will say that they want amendments and to make the bill work properly. That is what we have heard over and over again. With all the legislation that has come in front of us, it has always been the case that the first nations witnesses who testify want solutions. They do not want to go away empty handed.

It is a tragedy and it is wrong. That is not the way we should do government. Government is for the people. The people who are affected by legislation are the primary concern of the legislation. This is not for all of Canada. This is for first nations. They have the primary say here. If we go against that principle, we are really going against the principle of democracy if we are not allowing the people who are affected by the law to have the dominant say over how the law is put together.

If a law affects all Canadians, then we all have a say in it. The responsibility is different. However, in the case when we are making laws for first nations, first nations that have a constitutional right of self-government, that have been in this land for thousands of years, who signed treaties, they should have a say in it. We did not take the land away from them, we signed treaties with them. The Queen agreed about how these treaties were taken care of in 1763.

That is our history. Do we want to rewrite history? We should write it the way it has been done.

I really would like to get along with the government on legislation for first nations when it starts getting along with first nations and when it starts listening to first nations. This is what the legislation is for. These are the people who are affected by the legislation. It is not for businessmen, not for those who look upon reserves as potential new sources of land and resources. No, it is for those people. Let us remember that when we deal with legislation. If we do not, we are simply not doing the job that, as Canadians, we know we should be doing.

[Ramani Nadarajah, Counsel, Canadian Environmental Law Association]

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

My name is Ramani Nadarajah, and I am counsel with the Canadian Environmental Law Association.

CELA is a non-profit, public interest organization that was founded in 1970. It's an environmental law clinic that provides legal services to low-income people and disadvantaged communities by undertaking litigation and law reform to strengthen environmental protection.

We agree that improved access to safe drinking water is urgently needed in many first nations communities. The need for an appropriate regulatory regime for water and waste water in first nation communities has been highlighted in numerous reports, which I believe have been alluded to by previous speakers.

CELA has reviewed the bill and we believe that for the bill to achieve its goal of ensuring safe drinking water for first nations communities while protecting aboriginal and constitutional and treaty rights, three key issues need to be addressed.

First, constitutionally protected aboriginal and treaty rights need to be afforded protection under the bill. Second, a multi-barrier approach for first nations water resource management should be incorporated in the bill. Third, first nations governance structures need to be respected.

I am going to deal with the first issue now, which I think the Bar Association has already addressed, the issue of non-derogation in clause 3. CELA notes that the Supreme Court of Canada has already established the test for infringement of protected aboriginal and treaty rights for legitimate legislative objectives under the Sparrow decision. Given the existing jurisprudence on this issue, the limiting section in clause 3 of the bill is unnecessary, in our view.

Consequently, as we noted in our brief that was submitted earlier, our position on this issue is similar to what was addressed before. We don't think that particular section is necessary, but we also note that if there is a non-derogation clause, we submit that the one included in Ontario's Clean Water Act, which was designed for the protection of the sources of drinking water, is the most appropriate provision.

That provision simply reads as follows in section 82 of the Clean Water Act:

For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for the existing aboriginal and treaty rights of the aboriginal peoples of Canada as recognized and affirmed in section 35 of the Constitution Act....

The second issue the bill needs to address is to provide a more detailed provision about how to improve water resource management on first nation land. To a great extent, the bill's implementation will be dictated by the content of its regulations. However, we note that the list of regulation-making powers provided in clauses 4 and 5 of the bill fail to clearly ensure a multi-barrier approach for first nation drinking water systems, as recommended by the Walkerton and North Battleford inquiry reports.

A multi-barrier approach would require the following: reliable certification of labs; clear oversight and reporting responsibilities; clear delineation of the roles of health and environment water officials, including first nation officials and their governments; reporting of adverse events; delineating responsibility for responding to adverse events, and clear protocols; public involvement of community members, disclosure and transparency; means of receiving expert third-party advice, such as in Ontario through the Ontario Drinking Water Advisory Council; and outlining of resources and funding mechanisms, including for remote and small systems; and providing for infrastructure planning over time. CELA admits that a multi-barrier approach needs to be incorporated into the bill, otherwise it will remain simply as vague enabling legislation.

Finally, CELA admits that there needs to be recognition and protection of first nations' rights over the governance of water on reserve lands. In this regard, we have concerns about paragraph 5(1)(b) of the bill. That paragraph states that the regulations may “confer on any person or body any legislative, administrative, judicial or other power that the Governor in Council considers necessary to effectively regulate drinking water systems and waste water systems”.

The generic nature of this clause is a concern, given that the expertise and professional qualification of “any person” is undefined. That provision has the potential to result in possible loss of first nations' ability to control and manage their lands and water systems.

In addition, we note that clause 7, which is the conflict clause in Bill S-8 , provides that regulations may prevail over laws or by-laws made by a first nations to the extent of the conflict in respect of protection of drinking water.

Both of these clauses, in addition to clause 3 that I discussed earlier, have the potential to undermine the right of first nations to self-govern. Therefore, the committee should consider revisions to these provisions to ensure that this is not the case. Those are all my submissions, subject to any questions you may have.

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

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

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

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

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

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

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

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

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

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

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

I'll leave those as my opening comments.

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

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

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

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

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

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

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

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

Thank you.