Indigenous and Northern Affairs Committee on May 21st, 2013

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

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you very much. Thank you, Minister. We appreciate your testimony today and we certainly appreciate your willingness to come, as you have always demonstrated.

Colleagues, we'll suspend, and then we'll move on to the next witnesses.

Thanks again, Minister.

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

Thank you.

[The Chair, Conservative, Chris Warkentin]

The meeting is suspended.

[The Chair, Conservative, Chris Warkentin]

We'll call the meeting back to order and invite our witnesses to come forward.

Mr. Paul, we'll begin with you.

I appreciate your coming. We certainly appreciate your willingness to join us.

[Vaughn Paul, Chief Executive Officer, First Nations of Alberta Technical Services Advisory Group]

I'm going to let the councillor go first.

[Regena Crowchild, Councillor, Tsuu T'ina First Nation]

I'm representing Chief Whitney.

[The Chair, Conservative, Chris Warkentin]

That's wonderful.

If you would state your name for us, that would be helpful.

[Regena Crowchild]

I'm Regena Crowchild, member of council for the Tsuu T'ina First Nation.

[The Chair, Conservative, Chris Warkentin]

Thank you so much for being here.

We appreciate your willingness to come; we expected the chief.

We'll turn it over to you for your opening statement and then we'll have some questions after Mr. Paul gives his opening statement.

[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.

[The Chair, Conservative, Chris Warkentin]

Thank you, Councillor Crowchild. We appreciate that opening statement.

We'll now turn to Mr. Paul. Mr. Paul is here representing the First Nations of Alberta Technical Services Advisory Group.

We appreciate both of you coming.

We'll turn now to you, Mr. Paul, for your opening statement.

[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.

[The Chair, Conservative, Chris Warkentin]

I wonder if you could summarize the last point. We're moving into question time, so if that would be possible, it would be great.

[Vaughn Paul]

I'll just read out three, and then I can submit the document as information for those who are interested.

One is about having regulations without a regulator.

There is not enough information about incorporation by reference. What does that exactly mean? Does referential incorporation of Alberta's regulatory regime make sense?

Another would be source water protection.

TSAG's review of the source water protection aspects of Alberta's regulatory regime also called into question whether the system would effectively protect first nations on-reserve source water resources. Incorporation by reference is likely to include the watershed management planning provisions of Alberta's regulatory regime. This has a troubling starting point. The Government of Alberta's position is that it has no obligation to include first nations in watershed management planning. Further, under Alberta's regime, watershed management plans, which are supposed to be the main instrument for source water protection, are not binding and are administered as an unenforceable policy objective. Alberta has no enforceable source water protection legislation, like Ontario's Clean Water Act. The limited requirements of the provincial regime have demonstrated a failure to protect first nations from local and immediate potential impacts to on-reserve source water resources.

For all the reasons set out here and above, first nations express significant concern as to whether AANDC has carefully considered the adoption of the provincial regulatory regime, and whether the same is a meaningful solution in the context of first nations drinking water.

There are quite a few pages. There is a conclusion and recommendations.

We want to thank you for giving us this opportunity to make a submission on the legislation. Our organization agrees with the long-held position of the Assembly of Treaty Chiefs that the regulatory gap regarding first nation drinking water and waste water needs to be filled and that first nations must have a central role in a truly collaborative effort with Canada to develop legislation to fill that gap. However, based on significant concerns and issues raised by Alberta first nation leaders and water technicians in the impact analysis, TSAG respectfully submits that the bill as presently drafted is likely to create as many or more problems than it fixes. Accordingly, we recommend that the bill be returned to the Government of Canada for further work, particularly for more direct input from first nations.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

Colleagues, we're going to begin with five-minute rounds to ensure that we can get some additional questioners in.

Thank you so much to our witnesses for your extensive and important briefs.

We'll turn to Mr. Bevington, to begin.

[Dennis Bevington, NDP, Western Arctic, NT]

Thank you very much, witnesses. Both of you provided us with valuable testimony today, a very comprehensive discussion of the water system in Alberta.

I'm sure that you're familiar with the national assessment that was done. It indicates that a number of water supply systems are through municipal-type agreements, some 25 out of the 82 water systems in Alberta. How is that relationship?

[Vaughn Paul]

I'm from one of those first nations that has an MTA, or an agreement with a local municipality in the city of Edmonton. The relationship has been fairly good.

The problem we have is that when we built our pipeline and the water to our pumping station, it was 20 years ago. The cost of creating and producing drinking water at that time was about $80,000 annually. The cost has almost tripled. The budgets haven't reflected that cost, so our first nation is forced to look for other ways and means of paying those bills.

[Dennis Bevington, NDP, Western Arctic, NT]

Simply for the water supply in first nations you're looking at $250,000 a year.

[Vaughn Paul]

Yes.

[Dennis Bevington, NDP, Western Arctic, NT]

This national study suggested that $162 million was required to upgrade the 82 systems in Alberta to some kind of decent level, and then there was probably a requirement for the future of some $800 million in capital investments.

Are you familiar with those figures? Do they seem accurate to you?

[Vaughn Paul]

Yes, sir.

[Regena Crowchild]

Sir, could I say something on that?

[Dennis Bevington, NDP, Western Arctic, NT]

Absolutely.

[Regena Crowchild]

The Prime Minister announced that he would provide those dollars to deal with the issue. However, it has been just lip service. To date we have not seen any dollars in our community or in our province, Alberta. We have not received any dollars, and we were hoping that the Prime Minister will make his commitment a reality.