Indigenous and Northern Affairs Committee on May 23rd, 2013

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Okay.

[Ernie Daykin]

We at local government want to be part of the conversation around fleshing it out.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Right.

My last question is whether you have or have not. You've had good dialogue. You wrote the then minister at the end of November and you received a response on February 7. I understand there has been a subsequent conversation with the current minister, and they've thanked you for your input and assured you that your concerns will be taken under advisement and that there will be more consultation as the regulations are developed. It appears to me that you do have a seat at the table.

[Ernie Daykin]

Again, we want clarity on that. At the local government level, one of the terms that's used regularly in our land use discussions is “early and ongoing” consultation.

In my view we have some catching up to do. I appreciate the fact that we're at the table. I appreciate the fact that we've been able to present this, and we're just looking forward to more opportunities.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We'll turn to Ms. Crowder for the last questions.

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

Thank you, Mr. Chair.

Of course, it's great to see people here from my home province.

With regard to consultation, I would first like to put on the record that appearing before a standing committee does not constitute consultation in any kind of form. I really welcome your input. I think your brief was excellent. But there has been a long history of first nations in particular, but also other organizations, clearly indicating that appearing at a standing committee is not consultation. I just want to say that I don't consider this consultation.

The fact that you have had some ongoing dialogue with the minister or with the department in my view also does not constitute consultation. I think it's an opening of a door. With respect to my colleagues opposite, just because you get a letter from the minister saying “Everything is hunky-dory, don't worry about it”.... We have other instances. For example, with specific claims, which is not your area of interest, a number of years ago we had an agreement signed between the minister and the Assembly of First Nations that indicated that a process was going to unfold with regard to dealing with specific claims over a certain dollar value. That process never materialized, despite a written confirmation.

So I appreciate your raising concerns around consultation, and I want to point out a section in the preamble that doesn't actually mention municipalities or local governments, or any other organizations. It says that they “have committed to working with First Nations to develop proposals for regulations to be made under this Act”.

In the preamble there is no mention of other stakeholders that would be included in this process, so I think you're right to be concerned about how you will be included. I want to also point out that this says “proposals for regulations”. It doesn't indicate involvement in developing the regulations, only proposals for that.

What happens with the development of regulations is it goes away. There is no parliamentary oversight for it. It does not come back to us for any kind of review. So any assurances about your involvement, unless you have it guaranteed, signed, written, outlining how you will be involved, by when, what the results will be, are not worth the paper they're written on.

Could you tell me specifically how you would like to be involved, what the consultation would look like from your view? And maybe Mr. Hildebrand could address that, because I know there's a legal aspect of this.

But Mayor Daykin, go ahead.

[Ernie Daykin]

First off, I agree with you, and consultation is a lot of hard work. It's more than just coming and making a presentation for an hour. I see that as ongoing. And I think, with the greatest respect to us as elected officials, a lot of that work—tough sledding—needs to be done with the staff and from a technical point of view, because they are the experts.

We're willing to put in that effort at our level from the political level, and I'm going to speak for the staff, but at the staff level as well. There you go.

[Ralph Hildebrand]

Once again volunteered.

I obviously don't want to get into a debate about what constitutes or doesn't constitute consultation, but I agree with Mayor Daykin that the object is to be able to share our expertise and our concerns, and have those dealt with in a way that results in a better product all around and a more workable product.

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

You have raised a number of concerns with this piece of legislation that's before us. Part of it is regulation, but part of it is actually lack of clarity around what some of the clauses in this legislation mean.

We are actually as a committee going to have very limited time to study this. If you have proposed amendments, I would urge you to get them to us expeditiously because I suspect that we could be in clause by clause by as early as next week—not that I can predict the outcome of what the committee will determine to do. But we're just not going to have the time to address the kinds of concerns you have raised. I would encourage you to do that.

Am I out of time?

Thank you for coming.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Thank you, gentlemen. We appreciate your testimony today. We appreciate your opening statements and then your willingness to answer questions.

We will suspend the meeting, colleagues, for a few minutes. Then we'll line up our next panel.

Thanks, gentlemen.

[The Chair, Conservative, Chris Warkentin]

Colleagues, we'll call this meeting back to order.

For the third and final hour, we do have representation from the Atlantic Policy Congress of First Nations, and we want to thank Mr. John Paul and Mr. Vicaire for being here. We certainly appreciate your willingness to be here. We'll hear from you gentlemen first.

Then we'll hear from the Ontario First Nations Technical Services Advisory Group. We have Mr. Howsam, and Mr. Hoppe who has joined us as well.

We'll turn it over first to Mr. Vicaire.

[Chief Dean Vicaire, Co-Chair, Atlantic Policy Congress of First Nations Chiefs Secretariat]

Thank you.

[Witness speaks in Mi'kmaq]

Good morning everyone. My name is Dean Vicaire and I am Chief of the Listuguj community.

Good morning, honourable members.

I would like to thank you for giving the Atlantic Policy Congress of First Nation Chiefs this opportunity to testify before you.

My name is Chief Dean Vicaire, and I am the co-chair of the APC and the chief of Listuguj Mi'kmaq First Nation. My fellow co-chair, Chief Deborah Robinson, the chief of Acadia First Nation, sends her regrets. I'm here today to speak on behalf of the Atlantic chiefs regarding Bill S-8. I am also here with our executive director, John Paul.

We are a research organization that analyzes and develops culturally relevant alternatives to federal policies that impact on the Mi'kmaq, Maliseet, Innu, and Passamaquoddy communities and peoples. The Atlantic chiefs have always had the position that all Atlantic first nation communities deserve healthy safe drinking water now and for future generations to come. APC has taken the steps to look at innovative ways of addressing the current situation for Atlantic first nation communities, which Mr. Paul will expand on in more detail.

With the release of the Neegan Burnside study in 2010 that identified issues and concerns with first nation systems, and more recently Dr. Graham Gagnon's continued work based on the Neegan Burnside study, the true complexity of the situation in first nations communities became apparent. With no regulations in place to ensure the health and safety of first nations' drinking water, the current state of first nations' systems has escalated the issue even further. Regulations give requirements to determine how a system must function and what needs to be done to provide healthy and safe drinking water. Without proper oversight of any protocols or regulations, no one can really say if they are meeting any standard.

The APC chiefs also have other concerns about the legislation, such as the lack of resources to properly develop, test, and implement any proposed regulations, as well as the lack of resources for capacity not only for operators, but also for the maintenance of these systems.

The APC chiefs have taken steps to find innovative ways to address water and wastewater issues in first nation communities. In 2006, the APC presented to the independent Expert Panel for Safe Drinking Water for First Nations. The panel provided recommendations to INAC on water treatment and management for first nation communities. In 2009, APC contracted Dr. Graham Gagnon with the Centre for Water Resources Studies at Dalhousie University. He reviewed the 16 elements for safe water and developed a detailed document and approach for addressing these elements in first nation communities in Atlantic Canada.

In 2012, APC, with the support of Dr. Gagnon, conducted a regulatory review of the Atlantic provinces' current water and wastewater regulations. From that review, Dr. Gagnon developed a draft of regional benchmark regulations to give the APC chiefs an idea of what these benchmark regulations would look like and to identify the issues. As part of an innovative approach to addressing water issues, APC is also exploring the feasibility of a regional first nation water authority.

APC has undertaken three valuable research projects to strengthen the case for further resources and capacity for Atlantic first nations' water and wastewater systems. Mr. Paul will now expand on those studies.

I'd like to thank each and every one of you for listening.

[Witness speaks in Mi'kmaq]

Thank you.

[John Paul, Executive Director, Atlantic Policy Congress of First Nations Chiefs Secretariat]

Thank you, Chief Vicaire.

Good morning, committee members. I'm John Paul, the executive director of the Atlantic Policy Congress. I'm here today to speak on behalf of our chiefs regarding an approach to Bill S-8 and how our Atlantic chiefs are working to find proactive and innovative solutions to addressing the current state of water and wastewater systems in our region and in all our communities.

As you heard from Chief Vicaire, APC has been involved with this file since 2006, beginning with the presentation to the expert panel. Since that time, the APC have explored ways of addressing the current state of water systems in Atlantic Canada. With the release of the Neegan Burnside study on first nation water and wastewater systems in Atlantic Canada, it has given us a glimpse or a snapshot of current water issues.

To that end, the APC began to look at innovative options. The first thing we did was to have an asset condition assessment done. APC contracted Dalhousie University's Centre for Water Resource Studies to lead the water and wastewater asset condition assessment. The objective of that study was to perform asset condition assessments of water and wastewater systems in first nation communities in Atlantic Canada.

The study further entailed a site audit of water and wastewater treatment facilities and an assessment of the distribution and collection systems. The Neegan Burnside study identified that approximately $45 million was needed to address current shortfalls based on the safe drinking water protocols—although it was only a snapshot in time. It did not include distribution, collection, and other costs, which are critical elements in determining the actual cost.

The asset condition assessment study would also aid in identifying shortfalls in operation and maintenance for both water and wastewater systems through site visits to all Atlantic communities.

A second bit of work was a pilot for benchmark regulations. Bill S-8 states that the regulatory regime is required to ensure that residents of first nation communities have access to safe drinking water, and it commits to working with first nation communities directly to develop proposals for the regulations to be made under the bill. APC has contracted the Centre for Water Resource Studies to develop a regulatory benchmark for water and waste water in Atlantic first nation communities. Dr. Gagnon's report proposed benchmark regulations adopted from the most suitable elements existing in Atlantic provinces' regulations and all other regions in the country.

Testing of these benchmarks would be done to ensure that each first nation meets the requirements of benchmark regulations under Bill S-8, ensuring the availability of safe and reliable drinking water in each community and protecting the environment from wastewater effluent.

Four communities in Atlantic Canada, from each of the provinces, were selected as pilot communities for the proposed benchmark regulations. These pilot communities would determine whether first nations would meet the benchmark regulations, and if not, what type of resources would be required.

A third aspect of our work was a water authority. Our chiefs have also looked at developing a water authority entity to assist first nation communities in managing water and waste water. APC is currently working with the firm McInnes Cooper in Atlantic Canada to do further research to find out more.

Vital issues that will need to be addressed include the identification of required parties for the board of directors for such an organization; the organizational structure of the entity; the specific roles of a water authority; the responsibilities of each member; the financial arrangements that would result; a clear definition of the relationship with federal agencies; the defining of relationships with private companies or utilities, and the operating water and wastewater services; and the defining of the fundamental relationships between all communities and a water authority.

It is anticipated that a water authority structure will be owned and controlled by the first nations themselves. By having our first nations in control of this water authority, it would bring us closer to achieving greater independence and self-determination in terms of water and waste water.

We also wish to further develop the benchmark regulatory regime through our discussions with all of the provinces in Atlantic Canada to obtain their direct feedback regarding how they deal with such issues as implementing modifications to regulations, operator certification, emergency response plans, and drinking water safety plans.

It is also vital to gain feedback from the provinces regarding the proposed regime. Some of the questions we need answers to are: Are the proposed benchmark regulations too stringent, or not stringent enough? Are there any lessons learned from the provinces about items in the benchmark regulatory reform that will not work in practice?

Communication is possibly, I feel, the most critical component of the work we're doing on this file and what we've undertaken to date. Key messaging is important to ensure that the Atlantic chiefs and all our first nation member communities understand the innovative approaches that APC has undertaken to ensure the health and safety of all first nation people in regard to drinking water.

The necessary support of our chiefs and all our communities and people in the future on this issue is critical. APC has discussed the process, the benefits, funding, challenges, changes in liability; ultimately, however, there is still an overwhelming need to address this health and safety priority issue in our communities.

With the approval and mandate of chiefs and our communities, APC has taken a very proactive and innovative approach to ensuring a viable option for the health and well-being of all our member communities now and for future generations to come. As the issue of safe drinking water has been an ongoing issue for many years, with no clear answer on addressing the current state, a solution had to be found before a Walkerton-type of outbreak happens in any one of our communities. The health and safety of our first nation communities, people, and drinking water have been key drivers of our search for innovative options. The future investment in any innovative option must be fully discussed. As there has been a significant amount of work undertaken, it is timely to discuss this opportunity for a long-term funding commitment for potential solutions, which we, as first nations, want to clearly pave a way forward. First nations are currently the fastest-growing population, and it is our collective responsibility that we ensure long-term sustainability, ensuring our life-giving resource as well as the health and safety of future generations to come.

Again, our member chiefs support the concept of Bill S-8, but like many other first nations and organizations, there needs to be a long-term commitment—a very long-term commitment—of adequate financial resources and capacity to properly implement Bill S-8 and any proposed regulations.

We want to thank the committee for giving us the opportunity to discuss the work we're doing and the ongoing initiatives we are conducting.

Thank you very much.

[The Chair, Conservative, Chris Warkentin]

Thank you very much, Mr. Paul.

We'll now turn to Mr. Howsam, for his opening statement.

[Robert Howsam, Executive Director, Ontario First Nations Technical Services Advisory Group]

Thank you very much, Mr. Chair and committee members, on behalf of the Ontario First Nations Technical Services Corporation. I want to thank you for asking us to provide our technical perspective on this issue and to highlight some of the challenges that Ontario first nations encounter when delivering safe drinking water.

Our presentation is only of a technical perspective and not intended to replace the perspectives of the Assembly of First Nations, the Chiefs of Ontario or Ontario first nation leadership regarding the whole range of issues around consultation, finance, aboriginal land, and treaty rights.

In cooperation with individual communities in Ontario and affiliated first nation tribal councils and technical units, OFNTSC delivers advice on infrastructure and provides operator training to address the evolving needs of first nations. The Ontario First Nations Technical Services Corporation is active in the area of water and waste water—in particular in operator training and engineering services. We have staff look at environmental issues, project planning and development, fire safety, fire protection, housing and environment, and engineering services. Obviously the focus of the presentation today is on the drinking water issue.

There are many parallels between the circumstances of Ontario first nations now and the conditions that existed in Ontario municipalities prior to Walkerton in May 2000. However in the years following the publishing of the Walkerton inquiry report, the promulgation of regulations from the Ontario Safe Drinking Water Act 2002 and the Ontario Clean Water Act 2006 have successfully legislated municipalities and other provincial agencies to provide a broad safety net that minimizes the risk of releasing unsafe drinking water to consumers.

There is a high price to be paid for this safety net in the form of abatement, compliance, enforcement, and resources. Unfortunately, the delivery of reliable and safe drinking water to many first nations in Ontario remains unavailable. When the Ontario drinking water regulations are compared to other Canadian regions, the key difference in Ontario's case is that the safety net known as the agency—the Ontario Clean Water Agency—will come to the aid of any failing Ontario municipal drinking water authority. The cost of the agency's service is borne by the owner of that water system and could potentially include legislation and investigation.

Currently first nations and the federal government do not have an Ontario-like compliance abatement or enforcement mechanism. Without these types of mechanisms, first nations' boil water orders continue to illustrate the long-term health and safety issues that can only be remedied through significant capital reinvestment and facility upgrades. That's true in terms of the high risk facing at least 30 Ontario first nations.

The formula for balancing ownership and liability in Bill S-8 may in fact serve to reduce Ontario first nations' autonomy and increase the liability of chiefs and councils. The elements that comprise the Ontario municipal drinking water quality management system are an effective yet very costly model to administer due to the safety net features. Ontario first nations would benefit from a similar safety net. However, the additional cost required to administer it would be impractical given existing federal allocations. Already stressed capital and operation budgets would never be able to subsidize the safety net and would require significant new funding streams.

The notion of incorporation by reference is of particular significance to Ontario simply because of the complexity of the Ontario legislation. So if incorporation by reference happens, it must be noted that in the case of Ontario first nations, there is a very different reality in terms of their size, geography, capacity, etc.. That difference is even true when compared to most remote or rural municipalities, let alone urban centres. There are currently 30 communities in Ontario that only have winter road access via ground travel and receive their electrical services through on-site diesel generation, which brings a whole set of challenges on its own.

The national engineering assessment, which was mentioned earlier, estimated that the cost of addressing first nations' water facilities in Ontario would be $241 million, with another $4 million annually required for operations and maintenance.

Incorporation by reference would only drive these numbers even higher because of the complexity of the provincial legislation.

Now I'm going to turn it over to Matt, to talk a little bit about the current infrastructure realities.

[Mathew Hoppe, Technical Manager, Ontario First Nations Technical Services Advisory Group]

My name is Mathew Hoppe. I am the OFNTS technical manager. I oversee the circuit rider training program and engineering services.

In terms of the current infrastructure gap, since the release of the national engineering assessment for first nations, and completion of the recent water and wastewater plant inspections in Ontario, baseline data is now available to assist in the development and implementation of a strategy for remote first nations' capacity development and sustainable water operations.

First nations are utilizing this baseline data and comparing it to current operational maintenance and future infrastructure needs. Unfortunately, when one compares first nations' needs and reviews the projected water and wastewater funding allocations, these values significantly differ. These findings confirm that there is an opportunity to investigate options on how first nations and government can close this expanding infrastructure gap.

With these challenges, the federal government is increasing and prioritizing existing funding to high-risk facilities. While this is an understandable approach, it contributes to the neglect and premature rust-out of other facilities due to a lack of appropriate operations and maintenance funding.

During the past two years, AANDC has completed regional water and wastewater facility inspections. They used the same assessment criteria from the national engineering assessment. Upon completion of the inspection reports, the deficiency results were released to first nations, but the risk rankings of the results were withheld.

First nations continue to voice concerns about being responsible for inadequate, underfunded, under-designed facilities that do not meet current design best practices or regional standards. This can be extended to water main distribution systems that were not adequately sized or that have insufficient reservoir storage capacity that provincial systems require for fire protection requirements. The same could be said for wastewater facilities that will require substantial upgrades to meet the new federal guidelines.

The risk here is that first nations will be responsible for meeting increased standards with inadequate infrastructure and will provide lower fire suppression response services when compared to their municipal neighbours.

First nations do not want to be held responsible for facilities or distribution systems that do not meet current design standards or may require substantial upgrades to be compliant. An approach that is an ongoing challenge is to allow first nations an opportunity to investigate collective solutions and build on successful initiatives, such as the circuit rider training program and investment in the support mechanisms through tribal councils and political organizations that assist and advise Ontario first nations.

Recent reductions in tribal council funding formulas will significantly impact on their ability to provide services. With all of the various competing community priorities that are perpetually under-resourced, first nations are taking a closer look at their existing and future infrastructure needs, and recognize that the development of a community plan on current data is essential.

First nations continue to express a strong desire to operate and maintain their facilities; however, the reality of imposing a regulated regime using existing federal funding allocations may limit progressive first nations and negatively impact troubled first nations. A balanced approach would not only address these progressive first nations but also offer support to first nations that may need guidance and support.

Another factor to be considered is that legislation gives the federal government the ability to outsource the management of water and wastewater facilities to non-first nation entities. The money spent on first nations' infrastructure and maintenance should be an economic driver for communities. This feature of the legislation prevents that and gives no opportunity for the development of first nation capacity, either as individuals or communities.

The balanced approach is not limited to logistically challenged first nations, and should not limit the autonomy of larger and progressive first nation water laws. Regulatory compliance should not withhold first nations or negatively impact self-government water initiatives that are currently under way.

Sustainability can be achieved through a collective approach to maintaining facilities and a regulated environment; however, it must be developed through a collaborative first nation and government strategy with appropriate funding streams to administer it.

In closing, first nations recognize that sustainable and quality drinking water is directly linked to ongoing capital reinvestments, a structured environment, and development of a trained and skilled workforce.

If water regulations are developed, a balanced first nation approach must be an integral part of the development of the regulations and the implementation process to provide a sustainable drinking water approach. The government's Budget 2012 announcement of an investment of $338 million over two years was encouraging. First nations and their technical advisers continue to wait for an opportunity to be a meaningful part of the discussion during the development and implementation of these regulations.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

Thanks to all of you, gentlemen, for your opening statements.

We'll turn to Ms. Crowder now for the first seven minutes of questions.

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

Thank you, Mr. Chair.

I want to thank the witnesses for coming forward today.

I want to start with Chief Vicaire. It seems that the Atlantic Policy Congress has done a tremendous amount of work, has taken the initiative, and is moving forward.

Now, I want to point out that all the work you've done has been done without Bill S-8 in place, so can you speak to the fact that you've been able to go ahead and take charge of these initiatives without this particular legislation? The government is saying that we need this legislation in order to have these kinds of things happen, but clearly you're moving ahead.

[Chief Dean Vicaire]

Yes. That's exactly our intention. We're not going to sit back and just wait for things to come down the pike. We're taking the initiative, and we're being extremely innovative in terms of taking the lead on that.

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

Are you confident that you will be able to continue with those initiatives you've undertaken to date if Bill S-8 is passed?

[Chief Dean Vicaire]

I believe so. It's something that we're going to be striving for as long as we can. Whether or not the bill is passed, it's something that we're just going to move forward on.

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

Has there been any discussion with the Atlantic Policy Congress about how you will be involved in the development of the regulations and perhaps how you will be involved in determining how much capital and operations and maintenance money will be required to implement?

[Chief Dean Vicaire]

I'm not exactly keen on that in terms of where, to my knowledge, we're at with that process. However, I can possibly defer that to my colleague here, John. He could speak to that.

[John Paul]

We have had discussions with the government on that issue in particular. We're adamant about being involved in the process because of all the work we've done to date in developing the benchmark regime, which Mr. Gagnon has developed, and subsequently in our starting discussions with provincial governments as well.

We want the best regulations possible. We want the best standards for our people in the community to ensure that they get what they deserve, basically, and that's our goal as communities: working on behalf of our communities. As well, I think that in terms of the resourcing of this, it's like I spoke about yesterday. Our goal is to get the best and most accurate information so that we ourselves, individually as communities and collectively as communities, will know what it's going to cost, based on relevant, reliable data.

A lot of the work we've been doing over these years has been about creating volumes and volumes of data about our communities in terms of having a greater understanding of the systems that are operating in the communities, then compiling all that information about anything and everything that's in the communities, feeding it back to the communities, and working with the communities in terms of extrapolating a cost for communities. We're then aggregating that cost for what we're looking at, both in terms of the long-term capital cost and also in trying to come up with a very accurate cost for the operation and maintenance, and not just for now. We're trying to look out into the future for 10 years, 20 years, and 30 years out.

I've always said when we've come to talk about water and the bill that this is a public safety issue in our communities, and we have to take it seriously, as we must, and ensure that our effort as an organization is to create the most accurate and relevant information, where the government has to see it for what it is, basically, and recognize that. I think that's fundamentally important, because we have to explain this same data to our communities as well. I spoke earlier about this. That's why raising awareness and understanding and communicating about what we're doing and how we're doing it with our communities are fundamentally important in trying to come up with a solution that makes sense.

I'm hopeful that the government will live up to its commitment that says we will be directly involved in what gets developed in terms of a regulatory regime. We're adamant about that. We're going to have to wait and see exactly what happens, but I can tell you that we're not going anywhere. We've been at this for six years, and we're going to get this to where we want to get it for our communities and for our leaders.