Indigenous and Northern Affairs Committee on May 28th, 2013

[Jim Ransom]

It's a mistake to think that the provinces have all the answers. I'll give a case in point.

In the early 1990s, if you were a first nation operator, the only way you could get trained was to go to provincial training. It didn't work. When I was at the Assembly of First Nations, we pioneered a first nation training program in Ontario and, I think, in Manitoba. We took the trainer into the community versus taking the operator out of the community. It worked and it ended in savings.

It became the Indian Affairs national circuit rider training program that was just mentioned. It was a first nations solution that was generated because we were engaged and involved. This legislation doesn't do that. We're more than happy to share best practices, to talk about what can work and what should work, but nobody is listening.

[Ray Boughen, Conservative, Palliser, SK]

Let me just move down to another phase of the question.

Given that subclause 5(4) of the bill provides flexibility within the regulatory development process to allow the multi-provincial and international geographic of the Akwesasne to be accounted for, are you willing to work with the government to address your unique territory?

[Brian David]

I know that was the original intent of the development of the protocol. It's inherent. It's been there. With the protocol that we have with the federal government that we signed in the 1990s, and the one we signed just last year, the whole approach and the discussions around the self-government negotiations have already been demonstrated. It's already been expressed.

[Ray Boughen, Conservative, Palliser, SK]

So it's in place and ready to go.

[Micha Menczer]

My only other comment is that Akwesasne is prepared to do that. It's looking for a commitment and it needs to be concurrent. If the bill comes into place and there's a general set of regulations, then Akwesasne is going to be swept up. The whole point of the protocol and one of the purposes of subclause 5(4) that you quote is exactly that.

From the instructions we have from councils, we're prepared to work on that regulation, but it has to be as the other chiefs have said: a true cooperative venture, not a regulation presented for consultation. It has to be developed in cooperation and it should be concurrent so that it all comes in at the same time the bill comes into force. Otherwise, we're not achieving anything.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

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

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

Thanks very much.

I know most of you have been here before. This morning seems to me one of the most poignant panels we've ever heard. Whether we're hearing from Akwesasne, the large Blood Tribe, or a small community, we're finding that nobody wants this bill. Everybody sees that it doesn't get you safe drinking water. Everybody sees it's just removing the liability from the federal government.

It is hugely important that you are here today. Your panel and the response this government makes to it should be compulsory watching for every Canadian. This is Civic Literacy 101, this is Idle No More, and this demonstrates how we as Canadians respond to yet another piece of legislation being foisted on the people who have to live with it. Chief Rose and many others have come great distances. Your testimony today was consistent and compelling. I hope that Canadians will call upon the Conservative members of this committee to understand that this is a bad bill. Every single expert, including a Senate committee, has said that without the resources you cannot do your job. They said these resources were a pre-condition of any legislation. We need to understand that one size doesn't fit all. The stories you've told us here morning show that top-down won't work, that only bottom-up with customizing will be effective, whether it's done by a neighbouring community like Grand Chief Twinn's or whether you undertake to do this yourselves.

I would love, Grand Chief Twinn, for you to table with the clerk your full set of remarks. I understand why you had to explain your feelings about what this bill feels like to somebody who is responsible for the safe drinking water of a number of people. I would like it if Grand Chief Makinaw could also table the letter he received from the department, saying that they're not doing safe drinking water any more. This is important. As a backbencher in a Liberal government, I can remember ragging the puck for over a year with a bad bill on endangered species. We refused to vote for it until the government would amend it.

What I'm hearing this morning is that you want this bill withdrawn because it's not fixable. But unless there some epiphany or some titanium is injected into the spines of the members opposite, we are going to get this bad bill. And we probably won't get any amendments, because that's been their track record. On this side, however, we make this commitment: in respect of your section 35 rights, we will work to persuade them to add a non-derogation clause or to remove clause 3 of the bill. The Canadian Bar Association believes this has to be done if your rights are going to prevail.

We wrote a letter to the minister saying that we couldn't support anything without the necessary resources and consultation, and we will stay with that. But today your concern that this will fall on deaf ears has never been more poignant. I wanted you to know that coming here is hugely important. Even if we can't fix this bill, you have shown how paternalism and a top-down approach makes things worse. This only makes it better for the crown to actually lift off, as it did with the human rights, where you didn't have the money to build ramps or do what was needed to honour those requirements.

I can't thank you enough for plainly telling your story of your different situations. We will do everything we can to persuade the members opposite that they have to go back to the minister and explain what a bad bill this is and how it will make things worse for you.

[The Chair, Conservative, Chris Warkentin]

Thank you, Ms. Bennett.

We'll turn to Mr. Rathgeber now for some questions.

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

Thank you, Mr. Chair.

Thank you to all of our witnesses for your interesting perspectives.

I want to zero in on the issue of liability. To the chiefs and grand chiefs who were concerned about the downloading of liability from federal or provincial authorities to first nations, I'm curious if you're familiar with clause 11 of the bill, specifically subclause 11(3).

Do you agree with my interpretation that those provisions do not download responsibility to first nations, but rather they put limited liabilities on all parties who act under the regulations, including first nations? Can anybody answer that?

[Grand Chief Roland Twinn]

I don't understand the question.

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

Subclause 11(3) talks about acts and omissions for the federal minister or employees. Subclause 11(2) talks about liability for provincial officials, and subclause 11(3) talks about acts and omissions for either persons or bodies. When I read that, it would seem to include first nations who are acting pursuant to the regulations created under Bill S-8.

I know we'll be talking to lawyers in the next hour, and perhaps we'll get their perspective, but from the perspective of the chiefs and grand chiefs, does anyone have any comment on that interpretation of clause 11 of the act?

[Dorothy First Rider]

I think those particular sections are legal debates. That will take a lot of different interpretations, and a lot of different legal opinions will have to be provided.

However, to the first nations and the chiefs and councils who represent their respective communities, we shouldn't be regarded as “any other persons”. It is clearly indicated in that particular section and subclause 3 that it omits the liability of the federal government and the provinces. We are only referred to as “any other persons”. We need to be able to commit to adequate funding for first nations in terms of capacity, infrastructure, resources, and continued operations and maintenance for the thirty-year life cycle of the infrastructure, to ensure that little to no liability will be assumed by first nations.

If this bill is going to go through without having any kind of commitment for adequate funding or capacities, then of course first nations are going to be taking on that liability. Whether they want it or not, it is going to be pushed onto them. We need to be able to safeguard ourselves from assuming any kind of liability and ensure that we do not take that liability away from the federal government.

Remember that clause 3 protects the first nations and that the federal government took on the responsibility for first nations when they entered into treaties. What the legislation does, whether the first nations want it or not, is to push the liability onto them and relieve the federal government of their fiduciary obligations.

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

Thank you for that.

Mr. Ransom.

[Jim Ransom]

I would refer you to paragraph 5(1)(q). That's where it deems “a First Nation or any person or body, for the purposes of this Act to be the owner...”. I don't think it gives any authority to first nations anywhere else, except for that one sentence. In clause 11, first nations are not specifically mentioned as being given protection for liability purposes. But here we're declared the owner specifically, so there's no consistency in the rest of the legislation. Wherever it says a “province” or another “body” should be conferred something, they should say “first nation” as well.

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

I hope you appreciate that the word is “may”; it's permissive, not mandatory.

Thank you, Mr. Chair.

[The Chair, Conservative, Chris Warkentin]

Thank you so much.

We'll turn now to Ms. Hughes for the next round.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Thank you very much.

Before I start, Chief Twinn, I noticed that you had a presentation. You went off script because of timelines. I'm wondering if you and anybody else who may have had presentations and didn't get a chance to read them into the record wouldn't mind tabling them so we could have them as part of our deliberations.

I greatly appreciate the information you've provided us today.

I can also quote here. This is from the Assembly of Manitoba Chiefs. Their stance is “that Bill S-8 be abandoned or tabled to establish a good faith and honourable process that explores the Custom Water Law option from the Expert Water Panel”.

Again, that's the same direction here.

Chief Laboucan, you talked about the infrastructure, about the fact that you're on a boil water advisory. I know some of my first nations are in similar situations.

Let's look at Kashechewan, for example, in Charlie Angus's riding. The minister was here at one point. In his speech he basically said that they had a state-of-the-art system, but look at the situation they find themselves in, and he tried to put the blame on someone who wasn't properly trained. Yet, as far as I know, since 2006 Northern Waterworks has run that plant.

After the flood, the community had recommended storm sewers and back-flow limiter valves for each house and the government refused. This is part of what you're talking about. You have a state-of-the-art system but you don't have all the intricacies to make sure it functions properly. Maybe you could clarify that for me.

I also have a letter here from Chief Shining Turtle. He wrote the minister about the community infrastructure dollars and says: ...let's do some math:

$155 million over 10 years so 155/10 = $15.5 million/year nationally. INAC has 8 regions so 15.5/8 regions = $1.94 million/year/region Ontario Region has 133 First Nations 1.94/133 First Nations = $14,567.67 per year per band.

He goes on to talk about the cost: Water main construction in our area is $300.00/meter and building construction is $+300.000/sq. ft.

He went on to say that he wasn't sure you far they'd be able to get with that type of infrastructure.

I'm looking at all this. With respect to these dollars, I'm wondering about the need for infrastructure, and the information you had indicated with respect to language to give a three-year transition. I don't think three years would be enough when we're looking at this.

Do you have any comments with respect to the government's phased-in approach, which they feel would allow communities the opportunity to meet the conditions necessary to comply with legislative standards? To your knowledge, how, why, and who will determine whether a first nation is ready to comply with the regulations?

[Micha Menczer]

I'll comment on the three-year transition. That wasn't in relation to compliance with the regulations. Under clause 14 and the definition of a first nation, a self-governing first nation, or a first nation subject to a final agreement/treaty that has self-governing provisions, is not covered by the act unless it chooses to be.

Akwesasne has completed an agreement in principle. The minister will be signing the agreement in principle, looking for a formal date within the next month or two. Final agreement negotiations will commence late this summer.

I should say the agreement in principle in Akwesasne is a comprehensive agreement, so it's not a light agreement. I mean no disrespect to others. It's not an agreement that leaves a lot to be completed in the final agreement negotiations. That was the direction from council. If you're going to do this, do it seriously.

My analysis is we're about 85% to 90% toward a final agreement, so it's not going to be another 10 years. It's anticipated, and the work plan is for about a two-year process for negotiations, and then about a year for ratification and a bill through Parliament.

I acted for Westbank First Nation throughout this process, so we have a good sense of how this kind of timing works.

The three-year transition period is to allow for the completion of the final agreement negotiations and ratification, in which case they would be exempt. It's not for compliance with the other regulation.

The submission on an exemption regulation was based more on the multi-jurisdictional nature of Akwesasne and how it doesn't fit. One of the members referred to that. If that regulation is done properly, in cooperation with Akwesasne, taking into account all the elements, it has the potential to work hand in hand.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

Colleagues, our time has wound up.

I want to acknowledge that there were a number of different submissions made in paper format. If there are written submissions that you haven't yet made available, we'd certainly be interested in receiving and distributing them.

Colleagues, because of the timeframes we're working under and the significance of these documents, we will have to agree to suspend the requirement for translation before distribution. I wonder if we can get consent to distribute without full translation.

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

I'm sorry, but with respect, Mr. Chair, we have a policy that we do not distribute documents unless they're translated into both official languages. I would challenge the committee if the documents were all submitted in French. Many of the committee members do not read English. I think that's unfair.

[The Chair, Conservative, Chris Warkentin]

We're limited in our ability to distribute documents if there isn't consent to waive the requirement for translation. I'm not receiving unanimous consent to waive that requirement as we have done in the past.

Witnesses, I'm afraid we will not be able to distribute those documents, because we don't have the resources to have those immediately translated. You can distribute them yourselves to the members of this committee, but it cannot be done through the clerk.

Colleagues, I might recommend that you ask for those documents directly.

Ms. Crowder.

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

There is another solution. Allow the committee sufficient time to review the evidence before we go into clause by clause. There is no need to push this bill through without giving us adequate time to study the testimony that's come before us.

[The Chair, Conservative, Chris Warkentin]

Ms. Crowder, we have time to hear the testimony. The issues of translation are well known at this committee. The documentation that has been received would take significant time to translate and, obviously, that couldn't happen within the necessary timeframes.

Colleagues, if you'd like to see those documents, please ask the witnesses directly for them.

We'll now suspend the meeting for this time and return shortly, because we have an additional witness to hear from.

The meeting is suspended while we make the transition.

[The Chair, Conservative, Chris Warkentin]

Colleagues, we will call this meeting back to order. We thank our witnesses for waiting for the second round. We apologize for the initial confusion.

Anyway, we do have representatives from the Canadian Bar Association. Christopher Devlin is with us again. Thank you so much for being here. We also have Terry Hancock. Thanks so much for joining us.

By video conference, we have Ramani Nadarajah. I apologize if I haven't got the name right. We'll turn to you shortly.

We'll begin with the opening statements from the Canadian Bar Association, and then we'll move to the Canadian Environmental Law Association.

[Terry Hancock, Lawyer, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chair and ladies and gentlemen members of the committee.

The Canadian Bar Association is very pleased to be appearing before you this morning to speak to Bill S-8, which is a very important piece of legislation for Canada's aboriginal people.

The Canadian Bar Association is a national organization that represents over 37,000 lawyers from across Canada.

The letter you received was prepared by our aboriginal law section, a group of lawyers from across the country who are specialists in aboriginal law.

One of the Canadian Bar Association's objectives is to improve the law and the administration of justice. It is through that lens that we have examined Bill S-8.

With that, I'm very pleased to introduce you to Mr. Christopher Devlin, a well-known expert in aboriginal law, and well known to this committee.

Mr. Devlin is here on Victoria time to address the main points of the bill.

Thank you.