Indigenous and Northern Affairs Committee on May 28th, 2013

[The Chair, Conservative, Chris Warkentin]

Colleagues, we'll call to order the 75th meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

We are continuing today our study of Bill S-8. We have representatives from across the country. It is our privilege to have our witnesses here today, and we certainly appreciate folks coming from different parts of the country to reflect on this bill and to give us their testimony.

Colleagues, there have just been some small changes to the schedule of the witness list. We are going to hear from first nation communities first, and then in the final 45 minutes we'll hear from representatives of the Canadian Bar Association and the Canadian Environmental Law Association. We're going to cut it into two separate panels of witnesses, which will enable us to reflect a little more coherently on the bill. I do apologize to our colleagues for not being more clear about that in the information we sent out.

With no further ado, we do want to hear from our first nation representatives from across this country. We're going to begin by hearing from the representatives of the Mohawk Council, and I believe it's Acting Chief David who will begin our rounds of testimony. We will hear from the different representatives for 10 minutes and then we'll have some questions for you.

We'll turn it over to Acting Chief David.

[Brian David, Acting-Grand Chief, Mohawk Council of Akwesasne]

Sge:no swa:gwego. Bonjour. Good morning.

[The Chair, Conservative, Chris Warkentin]

Good morning.

[Brian David]

Coming from Akwesasne, we are a community of about 16,000. If you're not aware, our community is divided by the international border and a provincial line. For this very reason, in the early 1990s we negotiated a protocol agreement with Canada to deal with some of the unique features and issues that come up as a result of these multi-jurisdictional areas.

We've been an active participant in the discussions that have taken place over the last several years surrounding the development of federal legislation to address the safety of drinking water for first nations. Last year the Mohawk Council of Akwesasne provided oral and written testimony on Bill S-8 before the Standing Senate Committee on Aboriginal Peoples.

Regarding first nations' views on the expert panel, unfortunately, this has not continued with the drafting of the Bill S-8. We feel there was a lack of consultation and accommodation. I think this is a feature of the shortcomings that we hope to raise with the committee today.

As I've mentioned, we've reached milestones with Canada in self-government negotiations— first with the protocol agreement, then with active negotiations on lands and [Inaudible--Editor]...sectoral agreement. We have an agreement in principle on governance and relationships. We're actively involved in a negotiating mode with Canada for self-government.

I have mentioned before that we have in place a protocol agreement as a background. As an annex to that agreement, in the area of water and water regulation, it's already there. This particular act supersedes and oversees that, which causes great concern to us. The land and sectoral agreement that we're negotiating would encompass many of the issues that are currently being addressed in federal legislation. It is and always has been our opinion that the water quality standards can be established by first nations, that first nations who have the capacity to develop their own regulation and have a tradition in that, should do so. But they should do so in a manner that's not inconsistent with the standards set federally or provincially. All that is to be done should be left to the first nation. It has to be done that way because we all come from different and unique situations across the country.

One issue of particular concern has to do with the derogation clause, clause 3, within Bill S-8. It abrogates and derogates aboriginal and treaty rights to the extent necessary to ensure the safety of drinking water on first nation lands. We take strong exception to clause 3, as it intends to derogate from the existing aboriginal and treaty rights of aboriginal peoples guaranteed under section 35 of the Constitution Act, 1982. Aboriginal and treaty rights are inherently protective of the natural world, including waters. They're based on living in peace and harmony with our surrounding environment. The waters are viewed as bloodlines of our earth, our mother, and our survival depends on ensuring the health and safety of the waters. There is no need for a derogation clause that would take away these rights; they are inherently protective of the waters, and thus to the health and safety of our peoples.

If the existing provincial water laws already recognize and affirm aboriginal and treaty rights consistent with section 35 of the Constitution Act, 1982, the federal water legislation proposed for first nations should be consistent with both the protections afforded in the Constitution Act, and the provisions within provincial water laws that recognize those rights. It is strongly recommended that clause 3 of Bill S-8 be rewritten so that it is consistent with the Constitution Act and provincial water laws, with wording along this line:

For greater certainty, nothing in this Act or the regulations is to be construed so as to abrogate or derogate from any existing Aboriginal or treaty rights of the Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.

I'll now turn this over to my colleague, Mr. Jim Ransom.

[Jim Ransom, Director, Tehotiiennawakon, Mohawk Council of Akwesasne]

Thank you.

Good morning. I'm specifically going to address the regulations proposed in Bill S-8.

My name is Jim Ransom. I serve as the director of Tehotiiennawakon and oversee the environment, economic development, and emergency measures for the Mohawk Council of Akwesasne. I'm going to address in particular clauses 4, 5, and 6 in Bill S-8. They really represent the heart of Bill S-8.

While we support safe drinking water with appropriate standards, we cannot support the way Bill S-8 is written. In regard to developing standards, we have prepared a proposal to develop our own water and regulatory framework. We have submitted it to Aboriginal Affairs and Northern Development Canada.

It is comprehensive and will meet and exceed the requirements in Bill S-8. It has been prepared in cooperation with the Provinces of Ontario and Quebec. Building relationships around common interests and ensuring safe drinking water for all peoples is important to us. We actually have letters of support for our approach from the Ontario Ministry of the Environment and from the Quebec Ministry of the Environment.

However, the approach we've taken is not envisioned by Bill S-8. Clauses 4, 5, 6, and 7 put us to the back of the regulatory bus. Subclause 5(1) deems us owners of our water systems but fails to recognize our authority to self-regulate those same systems. Instead, it transfers liability without consideration of the condition of the assets being transferred to us, and it sets us up for failure without adequate resources to ensure transferred systems are safe and can be maintained.

Bill S-8 recognizes provincial water laws, but not first nation water laws. Clause 6 allows the Minister of Indian Affairs and our Minister of Health to enter into agreements made under the regulations “with any province, corporation or other body” and related to “administration and enforcement of regulations”, but it doesn't do the same with first nations.

To address these concerns, we offer the following recommendation: that clauses 4, 5, and 6 be amended by including first nations as entities that can be conferred legislative, administrative, judicial, and other powers necessary to effectively regulate drinking water systems and wastewater systems. In other words, don't just make us owners: give us the responsibility to regulate our own systems. The development of regulations must be done with the active involvement of first nations and should have room for recognition of first nations' jurisdiction and authority.

The last concern we have with Bill S-8 is in the sense of how it confers to the provinces jurisdiction over first nation water systems. In doing that, it doesn't consider the reality. Provincial water laws were developed for a different audience. They were developed for their own municipalities. They were not developed with first nations in mind.

For first nations, we have unique circumstances that are not considered by the provinces. We have cultural traditions that are not considered. We have operators in our communities who in many cases have not been trained to provincial standards.

Also, how you deal in remote communities with on-reserve water and wastewater systems is totally different from how you would deal with it in, say, Toronto or Ottawa. That's not being considered.

For us in particular, we're in two provinces. If you're going to confer and delegate down to the provinces, which province? That's a question that we have in particular.

We feel that the legislation can be enhanced by including provisions that allow first nations who have the abilities to develop their own regulations—or groups of first nations working together—to self-regulate. That's the direction the provinces are going in right now because of budget cutbacks. They're trying to get out of the regulatory business. And suddenly in Ontario you're giving them 133 first nations that they will now have responsibility for, with no resources.

We've spoken with them. They're not ready to take on that burden. But we are, because we see it as a responsibility.

With that, I'll turn it over to my colleague Micha Menczer.

[The Chair, Conservative, Chris Warkentin]

Our time has expired for the first submission, so this will have to brief. We want to hear from you, but we don't want to sneak time away from others.

I'll turn it over to you.

[Micha Menczer, Legal Counsel, Mohawk Council of Akwesasne]

Thank you.

Good morning. My name is Micha Menczer, and I am the legal counsel for the Mohawks of Akwesasne.

I will be brief. There is a written presentation in the kit that goes into more detail, but I want to address some of the proposed solutions from Akwesasne. My colleagues have addressed some of them. I want to highlight two areas.

There is a copy in your kit of a political protocol that was entered into between Akwesasne and Canada in 1998, and renewed recently in 2012 for 10 years. This protocol really recognizes the multi-jurisdictional nature of Akwesasne and the problems this creates for the community, both international borders and interprovincial borders. One community, so many jurisdictions, hard to govern, both for the Mohawk Council and for external governments.

It also recognizes a commitment to look for innovative and new solutions that will address this unique situation. There is no other first nation in Canada with these circumstances.

You hear a lot of things in the press about Akwesasne. For those of you who have been there, you'll know it's a very strong community, a well-governed community, and this protocol recognizes it. How does this relate to the bill?

The other piece I want to comment on is that in the spring of 2012, Akwesasne and Canada's chief negotiators signed two agreements—an agreement in principle on lands and estates, and an agreement in principle on governance and relationship. Those are also excerpted in your kits.

The Minister of Aboriginal Affairs recently received cabinet approval, and we are beginning final negotiations this summer. That agreement will recognize Akwesasne's jurisdiction over water and wastewater regulation and standards. Under clause 14 of the bill, upon completion of that agreement the bill would not have application to Akwesasne unless they sought to be on the schedule, as you are aware.

So how do we address these unique circumstances of multi-jurisdiction in Akwesasne? In terms of our recommendations in this area, there are two things.

First, under subclause 5(4) of the bill, there can be a regulation made exempting a first nation for all, or parts of, the bill. Our recommendation—it's in the submission—is that because of the fact that it is multi-jurisdictional, and as Jim has mentioned and as the written presentation goes on to explain, you can't have Ontario and Quebec in each part of the community looking for a consistent system. So we're looking for a concurrent development of a regulation under subclause 5(4) that would set out the regime for Akwesasne—the only one in Canada that is unique in this way.

The second element is that other bills you have—for instance, Bill S-2, dealing with matrimonial and real property—have a transition period when talking about first nations with land codes, to develop their laws before the bills click in. Even the first nations governance act of 2002, which was flawed in many ways, had an interesting provision in, I believe, clause 34 that allowed a three-year period for nations in the process of concluding final self-government agreements to be exempt from the application of the bill, to allow those agreements to be finished and ratified.

We're looking for the same thing in this legislation for Akwesasne. We're entering into final negotiations this summer. Actually, I'm going to a meeting tomorrow with the federal negotiators, where we're going to set the timetable for this.

It doesn't make sense to do that work, have the bill apply, and then un-apply. So we're looking for, similar to what you have in Bill S-2 and similar to the concept that was in the governance act, a three-year transition period to allow us and Canada to complete this work that will give recognition to Akwesasne's jurisdiction.

There is a lot more in here, but another element is that Akwesasne has been recognized by Canada, by Liberal governments, by Conservative governments, as unique through the political protocol, and needing to find solutions. There is a demonstrated capacity. There is a first-class facility. When Minister Duncan was minister, he visited the community and commented very positively on what it was like. The Grand Chief has invited your committee members to come down and see it for yourself.

So there is capacity, and there is a legal basis, based on the self-government agreement negotiations nearing conclusion, and the political protocol to look at this differently.

That's what we're asking.

[The Chair, Conservative, Chris Warkentin]

We appreciate that. Thank you so much. We'll undertake to get those documents circulated.

We'll turn now to Chief Weaselhead from the Blood Tribe first nation in Alberta.

[Chief Charles Weaselhead, Chief, Blood Tribe/Kainai]

Thank you.

[Witness speaks in Blackfoot language]

Good morning, Chairman, and members of the standing committee. On behalf of the Blood Tribe, thank you for the opportunity to address you on Bill S-8.

As you know, the Blood Tribe has a population of just under 12,000 on a huge tract of land, so Bill S-8 will affect us not only with regard to our constitution but also in the way the bill is delivered through regulations in our community.

The Blood Tribe, of course, has expressed concerns with this bill, through submissions and representations, from its inception as Bill S-11. Unfortunately, these efforts have not met the intended goals as the existing legislation, Bill S-8, will not provide safe drinking water for first nations peoples. Bill S-8 will put in place a legislative framework that will place the responsibility and liability for safe drinking water systems on the shoulders of the first nations chiefs and councils without giving them the financial resources and the capacity to carry out the responsibilities. Appendix A shows the amount of resources required to make sure we come up to speed with what is necessary for safe drinking water and wastewater management.

By transferring the liability to the first nations, Bill S-8 absolves the federal and provincial governments of liability. We do not see this as the proper exercise of the federal crown's fiduciary duty to first nations, a duty that has been recognized by the Supreme Court. Bill S-8 will not provide safe drinking water to first nations communities. It will only saddle first nations government with a responsibility that they do not have the resources to carry out. When they fail to carry out that responsibility, they will have broken the law and will be subject to punitive measures under the law. That is the situation that will be brought about by Bill S-8.

Earlier, I spoke to Bill S-11, and that was specifically what was stated in there, that the number one priority was to provide the necessary resources before regulation or legislation was set out. How does this scenario bring about safe drinking water for first nations communities? How is this the solution for the desperate and deplorable state of drinking water for first nations communities which has drawn worldwide attention?

In May 2003, Indian Affairs' own assessment of water and wastewater systems in first nations communities found that 75% of first nations water systems in Canada posed a risk and required a massive investment, having been neglected for decades. In 2006, the expert panel on safe drinking water for first nations, commissioned by the federal government, found that the primary issue was insufficient resources for first nations water systems and recommended that adequate resources be a precondition to any legislation. That is spelled out clearly in appendix A of the submission by the Blood Tribe.

The expert panel realized that a regulatory regime would not address the situation. Creating and enforcing a regulatory regime would take time, attention, and money that might be better invested in systems, operators, management, and governance.

In 2007, the Standing Senate Committee on Aboriginal Peoples in its final report on safe drinking water for first nations recommended that the resource gap for first nations water systems be addressed first as a precondition to any new legislation, and that first nations be consulted about the development of new legislation.

Recently, the national engineering assessment of first nations drinking water systems, commissioned by the federal government, found that a $4.9-billion investment is required to ensure that first nations peoples get the same level of drinking water services that are available to other Canadians. Of that, $162 million is needed in Alberta and $30 million is needed in the Blood Tribe. The United Nations has recognized a human right to safe drinking water. Without the required $4.9 billion investment in first nations water systems, this bill will violate our human rights for safe drinking water.

The national engineering assessment also found that in Alberta 64% of water systems cannot afford qualified operators. Only three out of 82 first nations water systems are operating without risk. Some 26% of first nations water systems are high risk, deliver inadequate water supplies, and need immediate corrective action.

These reports, panels, and committees on first nation drinking water systems all come to the same conclusion: only resources will ensure the safety of first nations' drinking water. Legislation cannot create safe drinking water. How can anyone, in the face of credible expert advice, pass this legislation? The $4.9-billion shortfall needs to be addressed. That is what will begin the process of ensuring the safety of water for our first nation communities.

As far as legal rights are concerned, it has been said that the bill is not about rights. That is not true. Safe drinking water for our people is our priority, and always has been. However, Bill S-8 not only fails to provide for safe drinking water, it also gives rise to serious legal issues that need to be addressed. These include no consultation.

Canada is legally required to meaningfully consult with the Blood Tribe whenever it contemplates action that may adversely affect our constitutionally protected aboriginal and treaty rights. Given that the bill provides for the derogation of such rights, Canada's duty to consult has been triggered; however, there has been no consultation with the Blood Tribe.

As far as our band council authority goes, the Blood Tribe council has authority under the Indian Act to pass bylaws dealing with the construction and regulation of wells, cisterns, reservoirs, and other water supplies. The bill provides that the regulations may prevail over any of our laws, including any that we make under the Indian Act respecting these matters. This bill amounts to regulations having the ability to usurp our statutory authority to make these laws.

The expert panel on first nations drinking water did an independent legal analysis of section 35 rights and concluded that there was a sound, legal basis for first nations' right of self government over water in our communities. Canada has refused to consult with us about the implications of Bill S-8 in this regard.

As far as third-party powers are concerned, the bill provides for the conferring of very broad legislative, administrative, judicial, or other powers on some unknown third party, who can, among other things, appoint an unidentified person or entity to manage our drinking water system. Essentially, it could punish us if we failed to adhere to the regulations, through the imposition of fines or imprisonment, or both. The bill further allows this third party to seize and detain things when verifying compliance with the regulations, and to obtain warrants to search places.

On imposition of liability, the bill provides authority to deem us to be the owner of a water system that is not ours. As a result of being deemed an owner, we would consequently possess certain liabilities that we would not otherwise have. At the same time, the bill makes provision for extensive liability protection for third parties and federal and provincial representatives.

On the matter of the UN Declaration on the Rights of Indigenous Peoples, Canada has endorsed that declaration, which states that legislation of this nature must be developed with the free, prior, and informed consent of indigenous peoples. A half-day engagement session on the legislation does not meet this obligation.

Where do we go from here?

We have sent out a profile of the Blood Tribe in appendix A, which is attached to this submission. You will see that we are obligated, through our tribal principles as expressed in Kainayssini, to protect our rights. What Bill S-8 proposes will adversely impact our rights. We are therefore opposed to it for these reasons. We are not opposed to safe drinking water or wastewater management. That must be at the forefront.

For these reasons, as well as the underlying and fundamental reasons we have mentioned above, we do not believe that amendments alone can remedy the problems inherent in this bill. We are of the view that Bill S-8 ought not to proceed at all, because Canada has not discharged its legal duty to meaningfully consult with first nations, including the Blood Tribe. Canada cannot continue to act in disregard of its duty.

We are of the further view that prior to this proposed legislation moving forward in the House, meaningful consultation should occur. We therefore recommend that this bill not be passed or enforced until such consultation has taken place. Additionally, any proposed solution to the issue of safe drinking water, whether by legislation, policy, or otherwise, ought to ensure that practical solutions are provided so that our people ultimately have access to safe drinking water. That ought to be the focus of any action Canada takes, rather than on violating our rights and imposing a paternalistic and punitive approach to the problem.

Our submission does not constitute consultation. We respectfully submit our concerns about Bill S-8 to the Standing Committee on Aboriginal Affairs and Northern Development. On behalf of the Blood Tribe chief and council, thank you for giving us this opportunity to provide the Blood Tribe's submission.

[The Chair, Conservative, Chris Warkentin]

Thank you, Chief. We appreciate that and your being here this morning.

We'll turn now to Grand Chief Makinaw. Welcome back. We've heard from you recently. We'd like to hear your submission this morning. Thanks.

[Grand Chief Craig Makinaw, Grand Chief, Confederacy of Treaty 6 First Nations]

Thank you, Chairman.

Thank you and good morning, members of Parliament, staff, chiefs, and technicians who are here today.

I am Chief Craig Makinaw from Ermineskin Cree Nation and also the Grand Chief of the Confederacy of Treaty 6, representing 17 first nations.

I'd like to introduce one of our council members from Ermineskin. Laurelle White is sitting with me.

We are tabling a written submission with the committee. I'm not going to read the submission but rather highlight some of the key points related to our objection to the whole legislation.

We have travelled from Ermineskin and Treaty 6 to appear before this committee on Bill S-8. Our ancestors entered into treaty with the British crown to allow for the Queen's subjects to live in our territories. When our ancestors entered into treaty with the British crown, water was included in the treaty for as long as the rivers flow. These were the words used at the time of treaty-making. In any discussion on water and the use of water, our treaties must be considered. Our ancestors did not give up water. Our ancestors tied the treaty-making to the waters flowing. The crown did not ask for the waters.

When we talk about water and the actions of the Parliament of Canada, the honour of the crown arises. Treaties are important constitutional documents for the state of Canada. Under international, Commonwealth, and Canadian law, Canada could not exist without the treaties made with our ancestors. The treaties underpin the whole state of Canada.

In light of this foundation, what is the constitutional authority of Canada to impose a legislative framework on the treaty first nations? Where is the honour of the crown?

In the Haida case, the Supreme Court of Canada wrote:

The honour of the Crown also infuses the processes of treaty making and treaty interpretation. In making and applying treaties, the Crown must act with honour and integrity, avoiding even the appearance of 'sharp dealing'.

Treaties serve to reconcile pre-existing aboriginal sovereignty with assumed crown sovereignty and to define aboriginal rights guaranteed by section 35 of the Constitution Act, 1982.

It is clear from the court cases that the Supreme Court of Canada, on the issue of the honour of the crown, is relevant when dealing with treaty rights. This is the case even when those rights have not been proven. The assertion of the right engages the government in a process to consult with first nations. It cannot be overridden by Parliament.

There is a positive obligation on the government to act in an honourable way in dealing with treaty peoples. In the case of the drafting and submitting to the Senate Bill S-8, An Act respecting the safety of drinking water on First Nation lands, no process was engaged with first nations.

The proposed legislation won't change the constitutional rights of the treaty first nations and put our nations in harm's way under various provincial schemes. There are ongoing boil water advisories across Indian country. This legislation does not propose any solutions. Rather, the legislation puts first nations in the direct path of an oncoming freight train.

At the same time, government is busy undermining programs that might have assisted first nations to avoid the whole process. We recently learned of the cancellation of the drinking water quality program. The government officials wrote:

The dedication and on-going support to this program enabled this program to grow and mature into a very successful and respected research program by First Nations communities across Canada.

Was it due to its success that the government cancelled the whole thing?

To quote the next paragraph:

I regret to inform you that Health Canada will not continue with the Drinking Water Quality Program after March 31, 2014. The Drinking Water Program will focus on enabling the communities to monitor drinking water quality as per the Guidelines for Canadian Drinking Water Quality.

How is this going to be done? The legislation is pushing our nations into the hands of the provinces and private corporations. This is a violation of the treaty. Programs and services that are started and cut by civil servants do not honour the intentions of the crown. These decisions are in contravention of any semblance of democratic processes. Legislation is drafted. We are invited to speak, but none of our words are taken into consideration. There are no amendments. There is no process.

We have complained to the United Nations as we struggle to uphold the honour of the crown, but the successor state of Canada throws dirt on the crown on a daily basis with these kinds of bills and acts. This is not bringing honour to the crown. We do not give our free, prior, and informed consent to this legislation.

I'd like to thank you for the opportunity to make this presentation today. I have some other motions from AoTC, from our chiefs' meetings.

[The Chair, Conservative, Chris Warkentin]

Thank you. We appreciate that. We will collect those and then we'll seek to get them distributed. Thank you, Grand Chief.

We'll turn finally to Grand Chief Twinn. Thank you for being with us again, on behalf of the committee and my province of Alberta.

Chief Laboucan, thank you so much for joining us this morning as well. We'll turn it over to you folks and then we'll begin with the rounds of questioning.

[Grand Chief Roland Twinn, Grand Chief, Treaty 8 First Nations of Alberta]

Good morning. I'll try to be brief. Most of what I was going to speak of was mentioned by the other representatives today. I'm going to allow some time for Chief Rose to use up some of our time together.

First off, the Assembly of Treaty Chiefs of Treaties 6, 7, and 8 in Alberta has, from the very beginning, made significant efforts to work with the Harper government to fix the deplorable state of first nations' drinking water systems. Our efforts have been rewarded by the government with political spin, broken promises, and a meaningless piece of legislation that will do nothing to ensure safe drinking water for first nation people.

We also have the exact same concerns as the Mohawk Council of Akwesasne, although I do have a little bit of a different view. I do not believe that a self-government agreement will exempt you from this legislation. I believe there's a clause in there that says this is enforced, in effect, with those first nations who have self-government agreements. The bill does not respect our section 35 rights, and our nation, the Sawridge First Nation, has exercised our section 35 rights to self-government and self-determination. We have developed our own constitution, our own legislation, and we do hold 15 areas of jurisdiction to ourselves.

This legislation, in my view, is going to make a lot of lawyers rich, and that's all it's going to accomplish. We are going to have to take this to court, to either judicial reviews or actual cases. There are 25 first nations in Treaty 8 Alberta and our situations are all completely different.

As the Sawridge First Nation, we don't have a drinking water system of our own. We are a small nation. We've applied to the federal government for over 20 years to control our own water and sewer systems. We've been repeatedly denied by the government. Our water is provided by the Town of Slave Lake municipality. We have taken advantage of the program for monitoring safe drinking water. The water standards are higher at the federal level is what we have found. Some of the contaminants in the water are at a high level according to the federal standards; however, when I get the letter from Health Canada, it says our water is provided by a municipality and is within provincial standards.

I'm not sure if the people of the Sawridge First Nation would agree that we would fall under now lesser standards using the provincial government's standards.

This has been echoed. There have been several expert panels who have said they need resources prior to legislation regulation. There have been so many times that we've seen these types of things being pushed through.

On section 35, the expert panel on first nations drinking water did an independent legal analysis of section 35 rights and concluded that there's a sound legal basis for first nations' right of self-government over water in their communities. Canada has refused to consult with us about the implications of Bill S-8 in this regard.

We're in the 21st century. You would think that the draconian ways of dealing with first nations of this country have dissipated, but they seem to be alive and well.

To top all of this off, the only part of Bill S-8 that actually does anything is the liability protection provisions that excuse Canada from all responsibilities for the safety of first nations' drinking water. If the bill were truly named, it would be “Breach of fiduciary duty to first nations and protection of liability for the Government of Canada, and the abdication of its moral and legal responsibilities for safe drinking water for first nations act”. That's how we feel.

I will turn it over to Chief Rose; she has a few words to say.

Thank you.

[Chief Rose Laboucan, Chief, Treaty 8 First Nations of Alberta]

First, I'd like to say good morning to everyone. I'm grateful you're here.

Chris, I'm supposed to tell you that Richard Kappo said hello. He's in your riding and he wishes he could be here.

I'd like to start by reading article 2 of the UN declaration: “Indigenous peoples and individuals are free and equal to all other peoples...”. I'll read that again, because it sounds so good. “Indigenous peoples and individuals are free and equal to all other peoples and individuals have the right to be free from any kind of discrimination...”.

That's as far as I'm going to go.

As a chief of my nation who has been elected for six consecutive terms, I'm sick and tired of the racist, bigoted treatment of first nation people in this country. It is time for change.

I come from a community that was on a 10-year boil water advisory. It was 10 years before we received a water treatment facility—and in my opinion, $6 million taxpayers' dollars was wasted because we can't even supply proper water quality to our people with that facility. It's a waste of money. We are still on a boil water advisory from to time. We just got off one, we got back on one, we're on one again. It never stops.

We need to address the problem of the infrastructure, the problem of maintaining the facility, the funding for qualified operators in our area, and also some kind of mandatory process to keep that quality of service that we should be giving to our people.

In 2006 the expert panel on safe drinking water recommended adequate resources. If you read the report, It was a precondition before any legislation was supposed to be developed. I'm asking this committee to listen with an open mind to bring about a difference in allowing quality water to be accessed by our people.

I've been here before and presented to committees and I'm not sure if anyone really listens or if this is part of a show or something. You know that water is critical, that it's vital to our people, that it's vital to anyone's survival, not just mine. Quality water is needed by everyone, and the bills coming forward right now are not doing anything to protect our water.

You go to other bills and you know that some lakes and rivers are not being protected now, and that's allowed. It's allowed by the people who are in power in our governments of the day, so that it's not possible to say how important it is to have that quality water, to have it for the next 10 generations and not just for tomorrow.

When I look at all of this process, the only thing that's benefiting, in my opinion, is the government of the day. They're the ones that are protected. I become liable for my community. What's the point? What is the point for us to be leaders in our community? We're going to be saddled with the liabilities of anyone who may take us to court in the future, as they did in Walkerton. I know the federal government bailed out that town, and so it should have.

You have that opportunity to fund this adequately now so we could produce the quality of water that we need, because it's not just about the facility. You're not addressing all the other things: the intake of the water to that facility that, at the end of the day, will produce that glass of water for you to drink. There are internal problems in the mechanisms there. I think those need to be addressed.

This bill is called the safe drinking water bill. No one's against that. That part of it is good in words only. But at the end of the day, it doesn't give us that.

This is something that needs to be considered by this committee. I hope you have your listening ears on—sorry, I'm a teacher by trade, so I'm using the terminology that I used to use—and you really do something. I hope this Conservative government that's in power today can really make a difference in allowing quality water in our communities. Don't waste the money by giving us water treatment facilities that we can't even operate and maintain. That's ridiculous. That's a waste of money.

At any rate, those are some of the things I wanted to say. No matter how we look at it, and no matter where you come from in this country, protecting our water is number one. Without it, you won't survive.

I just wanted to say those few words. I thank all the people from Alberta who have come here to talk on this water bill...and to our friends from the east who are here, talking about this process, but most of all for the rest of you to have that open mind to be able to make a difference in the long run. Otherwise, it would have been a waste of our time.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you very much, Chief.

We know it's earlier in Alberta; I feel your pain, absolutely.

We'll begin with Ms. Crowder for the first five-minute round.

Ms. Crowder.

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

Thank you, Mr. Chair.

I want to thank each and every one of you for coming before the committee.

I would like to be able to say that I had some confidence that the committee would be able to amend the bill, but I have to say that my experience over the last two years has been that, almost without exception, any attempts to amend legislation that comes before here has not been voted on by all members of the committee. The opposition has attempted to change these bills, and we've had very little success.

We've been hearing consistently about issues around jurisdiction, the non-derogation clause, liability, consultation, and resources. That's been a consistent message around what's wrong with this bill.

Chief Twinn talked about ending up in court. I have a recent article here that says by 2012, the total legal fees for Aboriginal Affairs will exceed $110 million. So the government is prepared to put money into fighting these cases instead of making sure the legislation is correct.

I think Chief Weaselhead asked a very important question, that given everything we've heard, how can we pass this legislation?

I only have five minutes, and that includes your response time, so I'll ask my question. In the preamble, it says that the Minister of Health and the Minister of Aboriginal Affairs “have committed to working with First Nations to develop proposals for regulations”.

I think you're all aware that regulations are developed outside of the scope of oversight from Parliament and from this committee. What would you like to see in terms of a process? How would you define a process that says “working with First Nations to develop proposals for regulations”? What would that look like?

Chief Twinn.

[Grand Chief Roland Twinn]

I do believe we have to develop a table where we can have some actual negotiations, not just input. We need to be able to have some input into what these regulations are so that we can have a grasp of whether or not we can comply with them.

First and foremost, without any resources given to the Sawridge First Nation, I find it very odd that any regulations could apply to us. We do not run a water treatment plant. I'm sure a lot of smaller first nations out there don't have water treatment plants.

How do you expect us to comply with any regulations when we have nothing to regulate? We have no resources to develop any capacity. You want me to be responsible for safe drinking water when the Town of Slave Lake runs the water treatment plant in its entirety. If somebody gets sick, they're not going to sue the town. This absolves the town, the municipalities, and the provincial and federal governments of liability, and throws it squarely on my shoulders. I don't see how that is constitutionally right. Does that not breach my Charter of Rights and Freedoms in terms of undue persecution? I don't think it's possible....

I'll just leave it at that.

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

Anyone else on what that would look like?

Chief Makinaw.

[Grand Chief Craig Makinaw]

I guess lately we've been having these meetings and sessions, but I know I echo what Grand Chief Twinn is saying, that we shouldn't have one-day consultations across the country and conference calls. That's not consultation. I agree with the grand chief that we must have a lot of time to discuss these bills to make sure that the sections where we have concerns are addressed. If that doesn't happen, then I agree with Chief Laboucan and all the other chiefs who are here that we'll probably end up being in court. We have to seriously look at the water issue.

There's another matter I didn't bring up here, and maybe I should have spoken on earlier. We had a commitment from INAC to give us $15 million towards our water system, and it is almost 10 years now that we've been waiting. Back home with Maskwachees Four Nations in Hobbema, Alberta, we're still waiting for this $15 million to help us with our water system. It hasn't come through yet, and we've been asking when these dollars will come through. It's getting to the point now where I'm speaking for myself, that we have to do something about that because if we don't move on asking the government for that $15 million, they're just going to brush us off.

Our water issues back home are getting worse now, and we're running out of water. It's just something I want the committee to be aware of, one of the other issues we have at home. We're running out of water and there are more houses there on cisterns, so it's getting to the point where down the road it's going to be a major issue.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

We'll turn to Chief Weaselhead.

[Chief Charles Weaselhead]

Yes, I just want to emphasize, albeit not echo the previous speakers on this, that what is most important—number one—is to do an overall assessment of each community. Somebody mentioned that there were differences in our communities with regard to size, population, and those types of things.

The other important thing that we've always advocated is building capacity for our operators. In Alberta we do have a small component that provides a circuit rider training program to our operators. I think it's really important because our people in our community know what the issues are, what the challenges are, on a day-to-day basis. We provided some kind of training to them through this. If you build capacity at the start, it takes away some of the liability issues and those types of things.

Our position comes as a complete package. Resources need to include capacity for our operators as well, because we are not going to stand for outside operators coming into our community. We've trained our people as well. I'm not talking about the jurisdiction, the constitution, the consultation. All those are built into the package. The process itself is flawed in regard to this. But on the ground, I think we still need to provide that capacity to our operators. I think most of our briefing packages talk about process in regard to consultation, our constitution, our own authority about providing safe drinking water, and stuff like that.

As far as the province is concerned, they have a duty to consult with us in that regard. To bypass us—if we're not part of this whole regulatory process—is not going to provide the opportunity for us to succeed in this. So I think it's important that this thing be consulted on from day one. We need to review the situation in the communities. We need to know exactly what it is the regulations speak to and under whose authority, and the protection of that.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you, chief.

We'll turn to Mr. Boughen now for the next five minutes.

[Ray Boughen, Conservative, Palliser, SK]

Thank you, Mr. Chair.

Let me add my word of welcome to the panel for taking time out of your busy day to consult with us. We appreciate your involvement and expertise.

Speaking of expertise, given your expertise on water and waste management, are you willing to participate in discussions to develop regulations and share your best practices so that other first nation communities can benefit from your experiences? I would welcome any of the panel responding to the question.

[Dorothy First Rider, Councillor, Blood Tribe/Kainai]

Good morning, everyone. I'm Dorothy First Rider from the Blood Tribe. To address your question and going back to the previous question regarding our regulation, the regulations have to respect the jurisdiction of first nations. We have to understand and appreciate the fact that the first nations are under-resourced.

Most first nations do not have the capacity to be able to begin discussing regulatory frameworks. I believe some first nations, such as the Blood Tribe, are entering into water management discussions with the Province of Alberta. They will be entering into discussions on the jurisdictional and the regulatory framework within the parameters of the existing reserve.

Our first nation, for example, has 548 square miles with 1,600 existing residences. We have five major communities on the reserve. It is going to cost us $30 million to bring up to speed the wastewater and water treatment plants for each of those communities, and approximately $78 million for the next 30 years for the continued operation, maintenance, and upkeep of those water and wastewater treatment facilities. So before we can begin to explore or discuss the regulations, we need to be able to address the capacities of each of those first nations and then amend those regulations to meet the needs of those first nations from now and into the future.

[Ray Boughen, Conservative, Palliser, SK]

Thank you.

Any others?

Jim.