Indigenous and Northern Affairs Committee on May 21st, 2013

[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.

[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]

Minister, thank you very much.

We'll begin with our rounds of questioning. We'll turn to Ms. Crowder for the first seven minutes.

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

Thank you, Mr. Chair.

Welcome, Mr. Minister.

With respect, simply putting in a regulatory regime will not guarantee adequate safe drinking water. In fact, the report of the expert panel on safe drinking water from November 2006 said:

First, and most critically, it is not credible to go forward with any regulatory regime without adequate capacity to satisfy the regulatory requirements. While it is tempting to assume that putting a regulatory regime in place would reduce the dangers associated with water systems, exactly the opposite might happen. This is because creating and enforcing a regulatory regime would take time, attention and money that might be better invested in systems, operators, management and governance.

Mr. Minister, I have three questions for you. The first question—and you've actually gone a long way to clarifying it—has to do with the self-governing first nations. I think you're well aware that subclause 14(1) of the bill is creating some concern, because that subclause did not restrict itself to groups for which there is a regulatory gap or groups that have developed their own laws.

Am I to understand that an amendment will be put forward to remove subclause 14(1) from the legislation?

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

Yes, that is my recommendation to the committee, for the reasons you have expressed. There was concern on the part of those who have land claim agreements and those negotiating land claim agreements, or even self-government arrangements, that this clause, the opt-in provision, could pose those jurisdictional challenges, but also that it could be used as a way of ensuring that in order to get infrastructure assistance they would have to adopt the regulations.

Our officials have had long discussions with stakeholders, and upon consideration of the matter and to ensure that no gap results from the removal, I am recommending to the committee that clause 14 be removed from the bill.

[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, 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]

Could I interrupt, as I only have a couple of seconds left.

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

Sure.

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

On the issue of liability, as you well know, a regulation does not have the oversight of Parliament or of this committee. Regulations could well be imposed that would leave first nations bearing the liability, and they would not be able to afford to make some of the other investments, because they would now be looking at this whole compliance regime. This was pointed out by the panel on safe drinking water.

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

As I have said, the responsibilities and corresponding potential liabilities of these parties will be similar to the responsibilities and corresponding potential liabilities of provinces and territories. Whether it be a first nation or a municipality, if you undertake to provide clean drinking water to a segment of the population, there are responsibilities that flow from that undertaking, but that will be left to first nations and those providing the water. We say that the bill authorizes regulations that set limits on liability, but these regulations will also protect the first nation members in the communities. I think the right balance can be reached by working through these regulations as they are being developed.

[The Chair, Conservative, Chris Warkentin]

Thank you, Minister.

We'll turn now to Ms. Ambler for the next seven minutes.

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you, Mr. Chair, and thank you, Minister, for being here today at the beginning of Aboriginal Awareness Week.

For seven consecutive years, Minister, we've been working closely with first nations to address the issue of safe drinking water and the current legislative gap. Can you tell us what discussions have taken place between the government and first nations on this subject?

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

I don't know if I have time to answer that question. You make an important point. There has been extensive ongoing engagement for seven years, beginning in 2006, the engagement that I referred to in my opening comments, for example, with the expert panel on safe drinking water for first nations. From June to August 2006, hearings were held in nine locations across Canada with first nations and other stakeholders.

Federal officials and the AFN's technical water experts group held a joint workshop in 2007. In 2008 there were meetings with first nations organizations and provincial and territorial officials to share information on the proposed legislative framework. From February to March 2009 the government launched a series of 13 engagement sessions across the country, at which some 544 first nations individuals were present. From early 2009 to early 2010, the government met with regional first nations chiefs and first nations organizations to discuss specific regional issues. Between October 2010 and October 2011, the government engaged in without-prejudice discussions with first nations and first nations organizations.

From October 2011 to today, the government has continued to meet with first nations and other stakeholders to discuss the proposed legislation. The preamble of the bill clearly states that the government will work with first nations to develop regulations. Moving forward with this bill will not place any additional strain on first nations, but rather will open the door wider to further collaboration on the development of these regulations, which are an important part of the comprehensive strategy I referred to in my opening remarks.

[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]

As was raised by Ms. Crowder, clause 14 in the bill has raised some concern. I was before the Senate committee the week before last, and the same concern was raised again. As I indicated earlier, the concern heard and expressed by representatives of self-governing first nations is that future programs and funding associated with water treatment and protection may depend on their agreement to be brought under the purview of the legislation. Of course that was not the purpose.

As they already have jurisdiction over water issues, and I recommended that we simply withdraw clause 14, I made sure there would be no gaps. What is important to us is our first nation community members: families, kids, people. The withdrawal of clause 14 creates no gap in the sense that the self-governing first nations and those who have concluded comprehensive land claim agreements already have that power.

What is important is that there be no gap. I'm going to be quite candid: there is one. In the case of the Sechelt, the power is not included in the comprehensive agreement. We will work with them to work out an amendment to their legislation in order to given them that power.

[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?

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

During the consultation process and parliamentary deliberations on the former bill, Bill S-11, first nation representatives, including the Assembly of First Nations, and Liberal senators raised the concern that the legislation and future regulations could infringe on existing aboriginal and treaty rights protected by section 35 of the Constitution Act unless a non-derogation clause was added to the bill.

As you know, Bill S-11 included a clause addressing aboriginal and treaty rights under section 35. The clause would have allowed non-derogation clauses to be added to federal regulations made under the legislation in order to ensure safe, clean, reliable drinking water on first nation lands. However, the unintended omission of a non-derogation clause in the legislation was interpreted by several senators and first nation representatives, including the Alberta chiefs you referred to, as a sign that the government intended to derogate from or infringe on aboriginal and treaty rights.

After that bill died on the order paper, we considered this and talked to first nations. Thus, in respect of these without prejudice discussions that I referred to earlier, we have included clause 3, which is the non-derogation clause that addresses the relationship between the legislation and aboriginal and treaty rights under section 35.

[The Chair, Conservative, Chris Warkentin]

Thank you, Minister.

We'll turn now to Ms. Bennett for the next seven minutes.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Thanks very much.

Minister, I think we've explained before that the Liberal Party position is that any legislation without capacity is not on, so once again I need to ask this question.

In your department's own report, it said that “regulation alone will not be effective in ensuring safe drinking water”. It also said, “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”. It was also said that “adequate resources—for plants and piping, training and monitoring, and operations and maintenance—are more critical to ensuring safe drinking water than is regulation alone”.

I want to know why you have decided to disregard these warnings and move forward with this legislation without addressing the critical capacity gaps.

[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—

[Carolyn Bennett, Liberal, St. Paul's, ON]

Okay, so that is what we were getting at the other night. The 2011 report, which, as you remember, was ready before the election but was held back until after the election because it was so damning, identified that $1.2 billion was the immediate shortfall, with $4.7 billion over 10 years. Yet last year's budget had only $330.8 million spread over two years, in 2012, which was actually just an extension of the existing temporary funding, and there was absolutely no new money in this budget.

I want to know, just as you've said, does the department have a comprehensive plan to respond to this assessment? Can you table with the committee the what, by when, and how? When will 100% of first nations homes in 100% of the communities have safe drinking water?

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

Between 2006 and 2014, as a government, we will have invested approximately $3 billion in water and waste water infrastructure and related public health activities to support first nations.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Do you have any idea what results you'll get for that? How many will feel—

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

When we look at the current status, following the release of the national assessment results—, which think was in July 2011—