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.

Extension of Sitting Hours

[Peter Van Loan, Conservative, York—Simcoe, ON]

Mr. Speaker, I will pick up where I left off. Obviously my hon. friend did not hear this and has not read the motion. I will respond to his macho riposte at the end of his comments by pointing out that the motion would do three things: first, it would provide for us to sit until midnight; second, it would provide a manageable way in which to hold votes in a fashion that works for members of the House; and third, it would provide for concurrence debates to happen and motions to be voted on in a fashion that would not disrupt the work of all the committees of the House and force them to come back here for votes and shut down the work of committees.

Those are the three things the motion would do. In all other respects the Standing Orders remain in place, including the Standing Orders for how long the House sits. Had my friend actually read the motion, he would recognize that the only way in which that Standing Order could then be changed would be by unanimous consent of the House.

The member needs no commitment from me as to how long we will sit. Any member of the House can determine that question, if he or she wishes to adjourn other than the rules contemplate, but the rules are quite clear in what they do contemplate.

As I was saying, the reason for the motion is that Canadians expect their members of Parliament to work hard and get things done on their behalf.

Canadians expect their members of Parliament to work hard and get things done on their behalf.

We agree and that is exactly what has happened here in the House of Commons.

However, do not take my word for it; look at the facts. In this Parliament the government has introduced 76 pieces of legislation. Of those 76, 44 of them are law in one form or another. That makes for a total of 58% of the bills introduced into Parliament. Another 15 of these bills have been passed by either the House or the Senate, bringing the total to 77% of the bills that have been passed by one of the two Houses of Parliament. That is the record of a hard-working, orderly and productive Parliament.

More than just passing bills, the work we are doing here is delivering real results for Canadians. However, there is still yet more work to be done before we return to our constituencies for the summer.

During this time our government's top priority has been jobs, economic growth and long-term prosperity. Through two years and three budgets, we have passed initiatives that have helped to create more than 900,000 net new jobs since the global economic recession. We have achieved this record while also ensuring that Canada's debt burden is the lowest in the G7. We are taking real action to make sure the budget will be balanced by 2015. We have also followed through on numerous longstanding commitments to keep our streets and communities safe, to improve democratic representation in the House of Commons, to provide marketing freedom for western Canadian grain farmers and to eliminate once and for all the wasteful and inefficient long gun registry.

Let me make clear what the motion would and would not do. There has been speculation recently, including from my friend opposite, about the government's objectives and motivations with respect to motion no. 17. As the joke goes: Mr. Freud, sometimes a cigar is just a cigar. So it is with today's motion. There is only one intention motivating the government in proposing the motion: to work hard and deliver real results for Canadians.

The motion would extend the hours the House sits from Monday through Thursday. Instead of finishing the day around 6:30 or 7 p.m., the House would sit instead until midnight.

This would amount to an additional 20 hours each week. Extended sitting hours is something that happens most years in June. Our government just wants to roll up our sleeves and work a little harder, earlier this year. The motion would allow certain votes to be deferred automatically until the end of question period, to allow for all honourable members' schedules to be a little more orderly.

As I said, all other rules would remain. For example, concurrence motions could be moved, debated and voted upon. Today's motion would simply allow committees to continue doing their work instead of returning to the House for motions to return to government business and the like. This process we are putting forward would ensure those committees could do their good work and be productive, while at the same time the House could proceed with its business. Concurrence motions could ultimately be dealt with, debated and voted upon.

We are interested in working hard and being productive and doing so in an orderly fashion, and that is the extent of what the motion would do. I hope that the opposition parties would be willing to support this reasonable plan and let it come forward to a vote. I am sure members opposite would not be interested in going back to their constituents to say they voted against working a little overtime before the House rises for the summer, but the first indication from my friend opposite is that perhaps he is reluctant to do that. Members on this side of the House are willing to work extra hours to deliver real results for Canadians.

Some of those accomplishments we intend to pass are: reforming the temporary foreign workers program to put the interests of Canadians first; implementing tax credits for Canadians who donate to charity; enhancing the tax credit for parents who adopt; and extending the tax credit for Canadians who take care of loved ones in their home.

We also want to support veterans and their families by improving the determination of veterans' benefits.

Of course, these are some of the important measures from this year's budget and are included in Bill C-60, economic action plan 2013 act, no. 1. We are also working toward results for aboriginals by moving closer to equality for Canadians living on reserves through better standards for drinking water and finally giving women on reserves the same rights and protections other Canadian women have had for decades. Bill S-2, family homes on reserves and matrimonial interests or rights act, and Bill S-8, the safe drinking water for first nations act would deliver on those very important objectives.

We will also work to keep our streets and communities safe by making real improvements to the witness protection program through Bill C-51, the safer witnesses act. I think that delivering these results for Canadians is worth working a few extra hours each week.

We will work to bring the Technical Tax Amendments Act, 2012, into law. Bill C-48 would provide certainty to the tax code. It has been over a decade since a bill like this has passed, so it is about time this bill passed. In fact, after question period today, I hope to start third reading of this bill, so perhaps we can get it passed today.

We will also work to bring Bill C-52, the fair rail freight service act, into law. The bill would support economic growth by ensuring that all shippers, including farmers, are treated fairly. Over the next few weeks we will also work, hopefully with the co-operation of the opposition parties, to make progress on other important initiatives.

Bill C-54 will ensure that public safety is the paramount consideration in the decision-making process involving high-risk accused found not criminally responsible on account of mental disorder. This is an issue that unfortunately has affected every region of this country. The very least we can do is let the bill come to a vote and send it to committee where witnesses can testify about the importance of these changes.

Bill C-49 would create the Canadian museum of history, a museum for Canadians that would tell our stories and present our country's treasures to the world.

Bill S-14, the Fighting Foreign Corruption Act, will do just that by further deterring and preventing Canadian companies from bribing foreign public officials. These amendments will help ensure that Canadian companies continue to act in good faith in the pursuit of freer markets and expanded global trade.

Bill S-13, the port state measures agreement implementation act, would implement that 2009 treaty by amending the Coastal Fisheries Protection Act to add prohibitions on importing illegally acquired fish.

Tonight we will be voting on Bill S-9, the Nuclear Terrorism Act, which will allow Canada to honour its commitments under international agreements to tackle nuclear terrorism. Another important treaty—the Convention on Cluster Munitions—can be given effect if we adopt Bill S-10, the Prohibiting Cluster Munitions Act.

We will seek to update and modernize Canada’s network of income tax treaties through Bill S-17, the Tax Conventions Implementation Act, 2013, by giving the force of law to recently signed agreements between Canada and Namibia, Serbia, Poland, Hong Kong, Luxembourg and Switzerland.

Among other economic bills is Bill C-56, the combating counterfeit products act. The bill would protect Canadians from becoming victims of trademark counterfeiting and goods made using inferior or dangerous materials that lead to injury or even death. Proceeds from the sale of counterfeit goods may be used to support organized crime groups. Clearly, this bill is another important one to enact.

Important agreements with the provinces of Nova Scotia and Newfoundland and Labrador would be satisfied through Bill S-15, the expansion and conservation of Canada’s national parks act, which would, among other things, create the Sable Island national park reserve, and Bill C-61, the offshore health and safety act, which would provide clear rules for occupational health and safety of offshore oil and gas installations.

Earlier I referred to the important work of committees. The Standing Joint Committee on the Scrutiny of Regulations inspired Bill S-12, the incorporation by reference in regulations act. We should see that committee's ideas through by passing this bill. Of course, a quick reading of today's order paper would show that there are yet still more bills before the House of Commons for consideration and passage. All of these measures are important and will improve the lives of Canadians. Each merits consideration and hard work on our part.

In my weekly business statement prior to the constituency week, I extended an offer to the House leaders opposite to work with me to schedule and pass some of the other pieces of legislation currently before the House. I hope that they will respond to my request and put forward at our next weekly meeting productive suggestions for getting things done. Passing today's motion would be a major step toward accomplishing that. As I said in my opening comments, Canadians expect each one of us to come to Ottawa to work hard, vote on bills and get things done.

In closing, I commend this motion to the House and encourage all hon. members to vote for this motion, add a few hours to our day, continue the work of our productive, orderly and hard-working Parliament, and deliver real results for Canadians.

[Regena Crowchild]

We rejected Bill S-8. We're coming from a Tsuu T'ina perspective. As for Treaty 7 in total, at the time when it was first introduced, everybody said that they didn't have any problems with safe drinking water. We want safe drinking water. It was the manner that it was introduced into legislation that overruled and overrode our jurisdiction. It overrode the fiduciary obligations and fiscal responsibilities.

We take the position that we have complete jurisdiction over the water that's on our territories. As nations, we have never surrendered that. We expect Canada to start implementing the treaty according to its spirit and intent. One of our concerns is the water issue. The Province of Alberta, which has the regulatory regime or the allocation, is in direct conflict with the spirit and intent of Treaty 7. We want to address that and get it all sorted out. It appears it has always fallen on deaf ears and we haven't been able to address it properly. We certainly want safe drinking water, but we want it to be done appropriately.

[Vaughn Paul]

Thank you very much, Mr. Chairman.

Good morning to the honourable members. Thank you for inviting our organization to make a presentation on this piece of legislation.

I'll give you a bit of background. I want to thank Regena for opening the comments from an Alberta perspective. I'm with the First Nations Alberta Technical Services Advisory Group, TSAG for short. It's a non-profit service entity governed by all first nations in Alberta through a chief steering committee appointed by the Assembly of Treaty Chiefs. TSAG provides technical services and training to first nations for housing, public works, community facilities, and environmental management, for more than 12 specialized programs.

Our organization has a particular focus and expertise in relation to water management at the local level in first nations communities. TSAG operates a circuit rider program which trains first nation water and waste water operators to deliver safe drinking water. In partnership with Aboriginal Affairs and Northern Development Canada—the regional office and the folks here in Ottawa—TSAG has also worked to develop a community-driven source water protection plan with one Alberta first nation. It is the first of its kind. This guide will serve as a national template for source water protection planning on reserve to further build community capacity for water resources management. TSAG provides technical training and network opportunities for first nations staff working in lands and environmental departments.

Over the last year and a half, we have engaged in a pilot project with representatives of AANDC. We've installed remote water monitoring devices in every first nation water treatment plant in Alberta. They're quite unique in their design and implementation. They don't use reagents or chemicals to do the testing and the monitoring. They give us real-time information on the quality of drinking water as it leaves the water treatment plant, using a sophisticated model and algorithm—don't ask me to explain it, please—so that no reagents and no chemicals have to be used. It's virtually maintenance-free.

That being said, I want to lay the groundwork for a bit of the expertise that we feel we have. It might not be a significant amount, but over the years we've been involved in the development of the impact analysis that was rolled out when we participated in the Neegan Burnside report. We felt the impact analysis was inadequate in that it didn't allow for enough time to have a thorough consultation and discussion about the impacts and ramifications of the different methods and methodologies for coming up with this piece of legislation.

AANDC's terms of reference for the impact analysis asked first nations to consider the impact on first nations of incorporation by reference of existing provincial regulations and to examine the elements of provincial law that may be addressed in the legislation. AANDC identified these elements in its discussion paper prepared in early 2009. They also required us to enlist the assistance of local experts in the analysis and to examine the impact of the regulatory regimes currently in place in the province.

AANDC stated that the purpose of the impact analysis was to seek input from first nations and first nations regional organizations on a proposed federal legislative framework for drinking water and waste water, based on the option of incorporating by reference existing provincial regulations. First nations only had two months to complete the work, which included a review and consideration of the five provincial statutes and 19 regulations, codes, and guidelines—about 149 pages of regulatory requirements—that collectively make up the provincial regulatory regime for drinking water and waste water.

We had to solicit input from 47 first nation communities in Alberta and their water system operators on the potential implications of subjecting first nations to the provincial regulatory regime. We also had to consider the potential impacts of incorporation by reference of the provincial regulatory regime and synthesize all of the above information into an impact analysis report. AANDC provided the AOTC with $22,000 in funding, or $468 per Alberta first nation, for the impact analysis.

In light of TSAG's extensive work on water matters with first nation communities in Alberta, the AOTC approached TSAG in early 2009 to assist with the creation of an impact analysis. Despite the grossly inadequate budget and the nearly impossible timeframe provided by AANDC, we reluctantly agreed to complete the impact analysis for the AOTC.

On April 6, 2009, TSAG submitted an analysis of the potential impacts of proposed new federal drinking water legislation to INAC on behalf of the AOTC. You have a copy, and it's on our website as well. AANDC stated in its terms of reference that once the impact analysis was complete, each of the 12 regional impact analysis reports would be submitted to the coordinating consultant who would roll up the results into a final summary report. This summary report would be provided to INAC once it has been reviewed by all the regional first nation organizations participating in the impact analysis.

We were provided with the draft summary report prepared by the Institute on Governance late in the afternoon of April 13, 2009. We were expected, along with other regional first nation organizations, to review the draft summary report prior to a meeting in Ottawa on April 15, 2009, at which time the report would be finalized. Of course, April 14 was spent travelling to Ottawa from Alberta and in practical terms, TSAG had little time to review the draft summary report.

From what we understand, these circumstances were not unique to Alberta first nations. Each of the first nation regional organizations received a draft summary report late in the day on April 13, 2009. Consequently, TSAG and first nations regional organizations from Saskatchewan, Manitoba, Ontario and Nova Scotia, the Atlantic region, Northwest Territories and Yukon made a request to AANDC to have 30 days for first nation regional organizations to review the draft IOG summary report. However, the request was denied. As a result, the same first nation regional organizations collectively insisted that the following disclaimer be added to the executive summary of the IOG summary report, and I quote, “The contents of this paper are the responsibility of the authors of the IOG report and do not necessarily reflect the positions or perspectives of the regional first nation impact analysis representatives or any particular first nation or regional organization.”

To date AANDC has not responded to any of the concerns and issues identified by TSAG and the AOTC in the impact analysis. The complete lack of response from AANDC to the impact analysis has left Alberta first nations deeply concerned and frustrated. Why did AANDC ask for and fund the impact analysis if it never intended to review it, respond to the concerns it raises, or to meet with Alberta first nations to discuss it?

It's clearly recommended that AANDC undertake a comprehensive consultation process with first nations with a view to collaboratively developing such legislation. Although there's legal obligation to consult, Alberta's first nations are most concerned about the practical implications of AANDC's failure to review, consider or respond to the AOTC's impact analysis. In simple terms, it means that Bill S-8 has been developed without any meaningful impact from first nations leaders, communities, organizations, or water system operators in Alberta.

I will now go to a brief summary of general concerns identified by the impact analysis, which represents the collective efforts of first nations leaders, communities, water system operators, staff, and concerned first nation members from across Alberta who attended workshops with TSAG, answered questions, phoned in their concerns and provided written input. It is a lengthy document, which is not surprising in light of what it was intended to accomplish. Unfortunately, TSAG does not have a budget to provide a French translation of the 220-page impact analysis for this committee, and AANDC has confirmed that it has not translated the document. In order to make it available to the members of this committee, TSAG has posted the document to our website, www.tsag.net.

Although we encourage honourable members to review the impact analysis, we have provided the following summary of concerns and issues identified in the impact analysis by first nations leadership and water system operators regarding the potential implications of applying the provincial regulatory regime to first nation communities.

It is important to stress that this summary does not include the portion of the impact analysis which addressed the potential impacts of the proposed legislation on first nations treaty rights and jurisdiction over water on reserve lands. Those issues were addressed in the AOTC submission, and will be by first nations from other regions, I'm sure.

Number one, our recommendation was resources, then regulation.

In the course of developing the impact analysis with TSAG, first nations leaders and water technicians stressed a serious overriding and persistent issue. Canada has consistently failed to provide first nations with adequate funding for the design, construction, operation and maintenance of first nations water plants and other drinking water infrastructure. AANDC has invested over $2 billion in recent years to tackle trouble spots in first nations communities, but more funding is required to bring all first nations water systems up to acceptable standards.

The cost of improving first nations water systems is being studied by the national engineering assessment, and has yet to be completed. If the core issue of adequate resources is not successfully addressed prior to the implementation of new drinking water legislation, many first nations will be unable to meet new regulatory standards. Moreover, the regulations could worsen the situation by increasing costs associated with monitoring, reporting, compliance, and the potential financial penalties related to enforcement.

AANDC has stated that the regulations will be phased in and applied to first nations communities when they are ready, yet no such commitment or requirement is contained within Bill S-8. Nobody wants new drinking water legislation to make the situation worse than it already is.

The expert panel stressed the problem of chronic inadequate funding is the most significant issue preventing the delivery of safe drinking water to first nations. As an example, a number of our communities have expended their annual budgets for their water treatment and water and waste water facilities in their first quarter. In Alberta with the high cost of labour, chemicals and utilities, come September or October often there's no money for chemicals, and they have to look at other ways and means.

Regulation alone will not be effective in ensuring safe drinking water unless the other requirements—a multi-barrier approach, cautious decision-making, and effective management systems—are met. These other requirements depend on adequate investment in both human resources and physical assets. Regulation without the investment needed to build capacity may even put drinking water safety at risk by diverting badly needed resources into regulatory frameworks and compliance costs.

Aboriginal Affairs' current policy is to fund 80% of the estimated rather than the actual operation and maintenance costs of first nations drinking water systems. In 2005 the Commissioner of the Environment found that the cost estimates underlying this percentage had not been revisited nor had they been updated for several years.

To our knowledge, AANDC's funding formula has not changed since 2005. Further, when negotiating funding agreements with first nations, Aboriginal Affairs ignores whether first nations have other resources to meet this requirement to fund the remaining 20%.

Many first nations water technicians told TSAG that the practical result for their communities is that they often have to operate and maintain their community drinking water systems on budgets that fall short of their actual costs. Some first nations communities have little choice but to reallocate money from other underfunded areas, such as health, education, or housing, to operate their water systems.

Nothing in the bill, INAC's discussion paper, or its plans for implementing the bill address this critical and fundamental issue. Regulation without the required resources is simply a recipe for perpetuating Canada's long record of failure with respect to first nations drinking water.

The chair of the expert panel, Dr. Harry Swain, said most clearly that if we want “to get good water on Indian reserves, then we should worry about the basic resources and then about a regulatory regime.”

Alberta first nations uniformly communicated the same message to TSAG during our work on the impact analysis. They want a clear commitment from Canada to address the problem of inadequate funding before developing new legislation or regulations.

Number two is first nations water and the Government of Alberta. The Government of Alberta's operating position is that first nations have no water rights or jurisdiction on reserve lands. It asserts that the province owns and controls all water resources within first nations lands.

AANDC has not considered the implications of Alberta's position and the often difficult resulting relationships that exist between many first nations and Alberta regarding water, even though the expert panel on safe drinking water for first nations identified this concern as a barrier to the effective use of provincial regulations. This barrier could become even more significant if provincial officials were provided with a role in regulation of first nations water systems.

Water technicians and their chiefs and council are deeply concerned that the Alberta officials may use any authority they derive as a regulator from the federal government to also advance Alberta's assertion of control and ownership of first nation on-reserve water resources. There's particular concern about the potentially staggering cost implications of being made subject to Alberta's new water markets under this bill, where even small allocations of water are being sold for millions of dollars.

Currently AANDC has made no commitment to purchasing water allocations for first nations in Alberta's new water markets.

[Regena Crowchild]

Good morning.

First, I have a letter from my chief, which reads:

Thank you for allowing representatives from my nation, Tsuu T'ina, to make a presentation to you on Bill S-8.

On behalf of the Tsuu T'ina people, I hereby serve notice to you that the Tsuu T'ina First Nation has jurisdiction over water on our lands. Our jurisdiction is protected by Treaty 7 and the Constitution Act of 1982.

Canada, the successor state of Great Britain, has responsibility to adhere to the Constitution Act of 1982.

That was from Chief Roy Whitney of the Tsuu T'ina Nation.

First of all, we would like to introduce ourselves to you. We are the Tsuu T'ina Nation. We are signatories to Treaty 7.

Our reserve is rectangular in shape, measuring 18 miles in length running from east to west, and 6 miles in width running from north to south. It consists of 69,000 acres, more or less. Our population numbers total 1,863 as of the latest figures. Our reserve borders on the southwest city limits of the city of Calgary.

Two natural water systems run through our reserve, the Elbow River and Fish Creek. Both are heavily depended upon by the city of Calgary. A major river, the Bow River,which runs through the city of Calgary, is a part of our traditional territory and has been used by our nation since time immemorial.

All of these sources of water have been largely polluted by industrial, agricultural, and residential development. Hence, that is why we are very concerned about water pollution and safe drinking water.

Water, pursuant to the Van der Peet case, is integral to our culture. In addition to physical needs, water is an integral part of our ceremonies, our songs, and our stories, which in turn define who we are as a nation.

As a signatory to Treaty 7, our nation would like to remind the crown about Treaty 7. Treaty 7 is a peace treaty between two nations where our Chief Bull Head agreed to set aside part of our traditional territory as a reserve for our exclusive use so that we could continue our way of life and to share the rest of the traditional territory with the Euro newcomers in exchange for a number of guarantees, including: fiduciary protection from Euro newcomers' encroachment; lifelong education and health services; continued rights to hunt, fish, and trap; and money for economic development.

This proposed safe drinking water bill is another example of a continuing attempt by the crown to get out from its responsibilities under Treaty 7, but we would like to remind the crown that it owes fiduciary and fiscal responsibilities to our peoples. These responsibilities arise out of a number of sources included in the Royal Proclamation of 1763, Treaty 7 of 1877, the United Nations Declaration on the Rights of Indigenous Peoples, and the Supreme Court of Canada's cases, such as the Guerin case.

The Supreme Court of Canada has also reminded the Government of Canada that it must act with honour when dealing with first nations.

Our nation's view on Bill S-8 is that the crown is not acting very honourably and simply wants to relieve itself of its fiduciary duties.

The summary of Bill S-8 states:

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.

This summary reflects what is in the proposed act. The proposed act is strictly about a regulatory regime and does not deal with health standards. It follows the general practice of the federal government adopting provincial legislative and regulatory regimes and applying them to first nations lands.

All indications are that the proposed act will simply adopt provincial laws and regulations regarding safe drinking water and waste water systems, but the reality is that a large amount of the water pollution on reserve lands is caused by weak provincial water standards and/or by lack of enforcement of the law and regulations of the province. Consequently, the federal government should take a lead role in assisting first nations to develop standards for safe drinking water on reserve as opposed to deferring to provincial legislation and regulatory regimes.

Bill S-8 makes references to sources of drinking water. In Canada there is no first nation that has control of sources of drinking water, other than wells actually located on reserves.

Further, there is reference to requiring permits for a body entity that may affect drinking water sources by its activity. A body entity could include an oil company. For instance, fracking is an activity that does affect underground water systems, but the proposed act does not mention anything about regulating that type of activity, other than requiring a permit.

The proposed act is very cognizant of provincial jurisdiction over water and other natural resources. It becomes very clear the federal government does not want to take a leadership role with regard to safe drinking water, but simply wants to off-load its health responsibilities for first nations peoples to the provinces, which have no constitutional responsibility to Indians.

The proposed act makes it very clear that water allocations will not be affected by the proposed act. Water allocations are regulated through water licences issued by the provinces. The issue here is what if there is a conflict between the drinking water needs of a first nation and water allocation for irrigation and industrial purposes. The proposed act makes it very clear that water allocations by the provinces will be paramount over drinking water needs of first nations.

Under the proposed act, the Governor in Council will have authority over a broad spectrum of regulatory powers. There is no mention of chief and council in Bill S-8. There is mention of conferring powers of a person or a body to carry out the regulations. Since there is no mention of chief and council, the body will most likely be a non-Indian, a corporation, or a provincial administrative agency. In other words, an outsider will most likely be in charge of safe drinking water for our reserve community. If a non-Indian or a corporation is in charge of safe drinking water on the reserve, it is more than likely the result will be about profit and not health.

A large part of the proposed act revolves around protecting government officials, both federal and provincial, from lawsuits. The government can make all the laws and regulations, but does not want to take any responsibility for mistakes, omissions, or negligence. Chiefs and councils will be held responsible for these matters under the act.

Water is not specifically mentioned in the Canadian constitution. The federal and provincial governments claim authority over water through implications such as sea coast and inland fisheries, navigation and shipping, municipal institutions, and property and civil rights. But first nations have a much superior right to water than provincial and federal governments have, whether you look at it from an aboriginal and treaty right—section 35 of the Constitution Act—or from a prior appropriation perspective.

Based on this right to water, Bill S-8 should really be about treaty implementation. It should be first nations enacting laws and regulations regarding safe drinking water, not the federal and provincial governments.

In conclusion, we are here to inform you that Tsuu T’ina Nation rejects Bill S-8 in its entirety, as it is not according to the spirit and intent of Treaty 7. Treaty 7 and our inherent aboriginal rights are protected by your Constitution Act of 1982.

Please be informed that Tsuu T’ina Nation is currently developing an act that addresses the water needs of our citizens on Tsuu T’ina lands.

Thank you.

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

Okay.

Minister, I was looking at the legislative summary of Bill S-8, which provides for the possibility of implementing regulations that would require permits to be obtained as a condition of engaging in any activity on first nations lands that could affect the quality of drinking water.

I would like to know what you think about that. Can the same reasoning be applied to first nations traditional territories, considering that the industrial activities carried out on those territories often involve reaching groundwater and lead to a noticeable drop in the quality of drinking water on Indian reserves?

[Ray Boughen, Conservative, Palliser, SK]

I have a quick one-minute question, Minister.

Bill S-8 would establish enforceable standards and protocols for water and waste water management. While provinces and territories each have their own safe water standards, there are currently no legally enforceable standards for first nations communities. How long will it take for regulations to be in place?

[Ray Boughen, Conservative, Palliser, SK]

Thank you, Mr. Chair, and my thanks to you, Minister, and to your officials for taking time out of your busy schedules to meet with us. We certainly appreciate it.

Minister, Bill S-8, the Safe Drinking Water for First Nations Act, is crucial to ensuring that first nations have the same health and safety protections concerning drinking water and waste water treatment that are currently in place for other Canadians. Can you expand on this? I know you touched on it in your remarks, but will first nations be involved in the development and implementation of the regulations?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Ms. Bennett, you raise an important concern that we have and which we share also. If you remember, in 2011 you wrote to my predecessor indicating the concerns of your party on this issue, and you even quoted the “Report of the Expert Panel on Safe Drinking Water for First Nations” of November 2006 saying “it is not credible to go forward with any regulatory regime without adequate capacity to satisfy the regulatory requirements”.

Now, when you look at Bill S-8.... I asked you at the beginning to please look at this as part of the comprehensive strategy, which is built on those three pillars—

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you.

To continue with regard to consultation, one of the results of the extensive consultation process was the non-derogation clause developed in collaboration with the Alberta Assembly of Treaty Chiefs, AOTC, which specifically addresses the relationship between legislation and aboriginal and treaty rights under section 35 of the Constitution Act, 1982. A preamble has also been added to describe the government's intention to develop regulations to work with first nations.

Why does Bill S-8 include a clause that deals with aboriginal and treaty rights?

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you for detailing the ways in which we have been engaging with first nations partners since 2006 and every step of the way with regard to this proposed legislation.

In fact, after the last iteration of the legislation, Bill S-11, died on the order paper, we took action to address some of the concerns that had been raised by some first nations and other stakeholders by making a number of amendments.

On the current bill, Bill S-8, we've also continued to consult and have taken action to address some of those concerns that were first raised with regard to the opt-in provision for self-governing first nations.

You stated in the House during second reading that the government has chosen to remove clause 14 from Bill S-8, as was also mentioned earlier. Can you explain how this amendment will address concerns related to the opt-in provision?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

When you said that Metro Vancouver deplored the lack of consultation, I was going to ask where they were during the last seven years. Their concerns were brought to my attention; as a matter of fact, they wrote to me. I wrote back explaining that municipalities were welcome and it was important that they participate in this process and where appropriate, continue to work with our officials. Regarding the concern on the level of services to first nations communities and how this will be enforced, I reminded them that we had committed to working with first nations, provincial and territorial governments, and other stakeholders to develop appropriate compliance and enforcement mechanisms.

In regard to liability, as you know, currently there are no legally enforceable drinking water and waste water treatment standards, and potential liabilities today are not clear. The responsibilities and corresponding potential liabilities of these parties will be similar to the responsibilities and corresponding potential liabilities of provinces and territories. Whoever has a water system has a range of liabilities that exist. That is why Bill S-8 is enabling legislation. Paragraph 5(1)(o) clearly says that the regulation can “set limits on the liability of any person or body exercising a power or performing a duty under the regulations”.

These will be developed in cooperation with first nations and stakeholders. The corresponding liabilities that already exist for provincial governments or municipalities would seem to any reasonable person to be the kinds of liabilities that would apply to an operator. The regulation enables the conclusion of agreements between first nations and third parties. It is clear that the regulation will allow the setting of limits on liabilities for first nations or a third party operator by an amendment that would enable the regulation to deem who is the owner of the system that is being operated.

The first question that you raised as to—

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

Thanks, Mr. Minister.

My second question has to do with liability. I understand some changes were made to the bill before us with regard to liability for third party systems assumed by first nations. We've received a briefing note from Metro Vancouver. It has a position paper on Bill S-8. In your speech today you indicated that municipalities had been consulted, but according to Metro Vancouver, one of the larger cities in Canada—and there are first nations in close proximity to Vancouver—the proposed legislation raises a number of concerns.

One of them is the lack of consultation and local government input, because municipalities may well be the providers of water, but the second issue is around liability. First nations have raised questions regarding liability if they are the owner-operators of the system and regarding their own capacity to enforce those regulations.

When you have a third party provider, such as a municipality, how will their liability be impacted?

[Bernard Valcourt, Conservative, Minister of Aboriginal Affairs and Northern Development]

Thank you, Mr. Chair.

I appreciate this opportunity to participate in the committee's review of Bill S-8, the Safe Drinking Water for First Nations Act.

I'm pleased to appear before this committee today to present this important piece of legislation developed to ensure that first nations communities throughout Canada have the same health and safety protections for drinking water as all other Canadians have. I truly hope that the committee will support the passage of this legislation before we adjourn in June.

Bill S-8 should not be seen in isolation. Bill S-8 is an essential part of our government's larger comprehensive strategy to improve the quality of drinking water for residents of first nations communities, through three pillars: capacity development, which is important; continued investment in infrastructure; and the development of a clear regulatory framework.

Our government recognizes the necessity for capacity and infrastructure improvements in the provision of safe drinking water on reserves. I know that many interested parties are concerned about the issue of on-site capacities and infrastructure. That is why our government doubled the funding for the Circuit Rider Training Program, which has helped support and train hundreds of first nations water and wastewater system operators. And this program has produced significant results. For example, since July 2011, the percentage of first nations systems that have primary operators certified to manage the drinking water systems has increased from 51% to 60%, and the percentage of certified wastewater system operators has increased from 42% to almost 54%.

In addition, our government continues to make investments in water and wastewater infrastructure. Between 2006 and 2014, our government will have invested approximately $3 billion to support the delivery of drinking water and wastewater services to first nation communities. You will recall that, as part of Economic Action Plan 2012, $330.8 million is being invested over two years. As a result of those significant investments, the percentage of high-risk water systems has decreased by 8.1%, and the percentage of high-risk wastewater systems by 2.1%.

Mr. Chair, I can assure the committee that our government will continue to invest in water and wastewater infrastructure.

However, despite these significant investments and progress, one key factor remains unaddressed—the absence of an enforceable regulatory regime on reserves. Until regulations are in place, we know that achieving long-term sustainable progress will be challenging. Modern equipment and good intentions are great, but they need regulations to support them. That is why all municipalities and communities across Canada have adopted regulations. Regulations are essential because they map out clear lines of responsibility for each of the many steps required to safeguard water quality, such as source water protection, regular quality testing, and adherence to legislated—and therefore enforceable—standards for water treatment and distribution.

Our government believes that first nation communities across this country should have access to the same quality of safe, clean and reliable drinking water as all other Canadians living off reserve. This can only be achieved by having a strong regulatory framework in place.

The proposed legislation now before the committee will fill this regulatory gap. Should Bill S-8 receive royal assent, our government will continue to work with first nations and other stakeholders to develop regulations on a region-by-region basis. Developing regulations by region will enable the government and first nations to partner with municipalities and regional technical experts.

In addition, this collaborative, region-by-region approach will also leverage the value of existing regulations. Rather than creating entirely new regulations, the most efficient approach is to build upon existing provincial and territorial regulatory frameworks and adapt them as needed in order to reflect specific local conditions for each first nation community.

Let me be clear, Mr. Chair. This approach would not take jurisdiction away from first nations, nor would it give a province, territory, or municipality jurisdiction over first nation lands. By developing regulations that are comparable to those that exist off reserve, first nations will be better positioned to partner with neighbouring municipalities in the delivery of water treatment services and to cooperate on other matters, such as operator training, business ventures, and the adoption of new technologies.

Now, it will take some time to develop and implement these regulations across Canada. For this reason, the regulations will be phased in to ensure first that there is adequate time for the government and first nations to bring the drinking water and waste water infrastructure and the operating capacity to the levels required to conform with the new regulations. There's no point in implementing regulations unless that capacity and that level of infrastructure are in place; otherwise, as you know, it doesn't make sense. As we've stated many times, we're not going to roll out regulations until first nations have the capacity to abide by them, because health and safety remain our ultimate goal.

I fully recognize also that some first nations do not have the resources needed to help develop these regulations. Back in April 2012, the former minister, Mr. John Duncan, sent a letter to all chiefs and band councils confirming that our government will provide the funds needed for eligible activities.

We have already, for example, provided funding to the Atlantic Policy Congress to support their work in researching and analyzing the development of regulations for first nations in the Atlantic region. It is important to recognize that the collaborative and region-by-region approach builds on the extensive ongoing engagement and consultation that have been a defining characteristic of the joint action plan on first nations drinking water.

This joint action plan was launched by the Government of Canada and the Assembly of First Nations in March 2006 to address the drinking water concerns in first nation communities. Over the last seven years, our government has been engaging with first nations, regional first nation chiefs, first nation organizations, provincial and territorial government officials, municipalities, and other stakeholders on legislation for safe drinking water and waste water every step of the way.

Our government will continue to consult with first nations and other stakeholders on the development of regulations. As a result of that collaborative process, there have been 10 amendments made to this legislation.

Some of the key differences between the previous version of this bill and the current Bill S-8 include: the addition of language to the preamble to demonstrate our commitment to work with first nations on the development of regulations; clarification that regulations would not include the power to allocate water supplies or license users of water for any purpose other than for the provision of drinking water; the removal of language that could be interpreted as powers to compel first nations into an agreement with third parties; and the inclusion of the non-derogation clause addressing the relationship between the legislation and aboriginal and treaty rights.

The non-derogation clause now found in Bill S-8, in clause 3, was proposed by first nations during the without prejudice discussions we held with them. The clause essentially prioritizes the safety of drinking water over issues of aboriginal and treaty rights. That is an important point. In my view, this is entirely appropriate, because safe drinking water is essential to human health.

As I stated previously, the goal of this proposed legislation is the health and safety of first nations. The inclusion of a non-derogation clause in the bill is one of the many accommodation measures that resulted directly from consultations with first nations.

We continue to listen. More recently, as many of you know, concerns have been raised by various stakeholders regarding the opt-in provision, the famous clause 14 in Bill S-8, which would provide self-governing first nations and those with land claim agreements the ability to opt in to a federal regulatory regime if they so choose. Specifically, it was suggested this provision could create jurisdictional challenges and impact ongoing and future land claim agreements, among other issues.

As I stated in the House two weeks ago, after careful consideration and extensive discussions between my officials and these stakeholders, I am recommending to this committee the removal of this provision from Bill S-8. I want to assure the members of the committee that removing the opt-in provision would have no negative impact on any first nation.

Further, I believe removing this clause serves as yet another good example of positive results produced by ongoing collaborative discussions with first nations and other stakeholders. I hope that members of this committee will see the value of this change and will support this amendment.

To conclude, let me reiterate, Mr. Chair, that the proposed legislation now before this committee is the product of a lengthy and comprehensive process of study, engagement, and meaningful consultations with first nations and other stakeholders. This bill is an essential part of a larger collaborative strategy—which I mentioned at the beginning—to improve the quality of drinking water available to residents of first nation communities.

This strategy has produced remarkable results, and yet, until regulations are in place, the progress made remains at risk. Safe drinking water requires a regime that defines responsibilities and establishes clear lines of accountability. In response to those who feel we should wait until all investments in infrastructure have been completed, I say that first nations should not have to wait any longer to have access to safe, clean drinking water. I want to respectfully point out that this depends on the comprehensive strategy I talked about earlier.

It has taken seven years for us to get to this point—seven years of discussions, consultations, engagements and investments have produced this legislation before you today. We believe that now is the time to move forward. The health and safety of first nations is an urgent priority. Through continued investments, this bill will bring the quality of the drinking water and the treatment of wastewater on reserves to the same standards enjoyed by all other Canadians.

Safe drinking water should be available to all Canadians, and Bill S-8 will help achieve that goal.

Mr. Chair, the solution is now in your committee's capable hands. Thank you. I will now answer any questions the members may have.

[The Chair, Conservative, Chris Warkentin]

Colleagues, we'll call this meeting to order.

This is the 73rd meeting of the Standing Committee on Aboriginal Affairs and Northern Development. Today we are beginning our study with regard to Bill S-8, An Act respecting the safety of drinking water on First Nation lands.

Today we have the minister with us. It's always a privilege to have the minister before us.

We appreciate your willingness, Minister, to join us. We will turn it over to you for your opening statement. Then, as is the custom in this committee, we will begin with rounds of questions.

Mr. Minister, please.

Indian Affairs and Northern Development—Main Estimates, 2013–14

[Kyle Seeback, Conservative, Brampton West, ON]

Mr. Chair, between 2006 and 2014, including the budget 2012 investment, the Government of Canada will have invested approximately $3 billion to support first nations communities in managing their water and waste water infrastructure and related public health activities. The government is prioritizing these investments to high- and medium-risk systems to address factors that are the greatest contributors to risks such as capacity and training in operations and maintenance.

In 2011-12, the government supported 402 major and minor first nations water and waste water infrastructure projects and 286 are currently planned for 2012-13. Could the parliamentary secretary please inform us how Bill S-8 will help protect Canada's substantial investments in first nations' water and waste water systems?