Indigenous and Northern Affairs Committee on May 28th, 2013

[Kyle Seeback, Conservative, Brampton West, ON]

But if we did what you're suggesting there, in order to determine what amount of funding would be required to implement that plan you'd need to have the plan first, which is, “What are the regulations going to be?” Does that not make more sense to you?

[Christopher Devlin]

I know that Treasury Board likes to have a plan before they issue a cheque.

[Kyle Seeback, Conservative, Brampton West, ON]

How am I doing for time?

[The Chair, Conservative, Chris Warkentin]

You're pretty well out—

[Kyle Seeback, Conservative, Brampton West, ON]

Well, I'll just say one last thing.

My colleague, Mr. Genest-Jourdain, was talking about paragraph 5(1)(h) and about seizure and what it will do. Again, this is not mandatory language. This is permissive, right? The clause overall starts off with “may”.

So again, that concern may or may not actually exist, because that regulation may or may not ever come into force. Would you say that's accurate?

[Christopher Devlin]

It will entirely depend on the regulations.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you so much.

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

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

Thanks very much.

I don't think it's up to your association to make a pronouncement on that, but I do think in terms of my colleague on the other side that there have been very clear assessments of how much money it would take to get safe drinking water. I mean, that's actually the goal here: safe drinking water.

It seems that $1.2 billion is needed urgently, and $4.6 billion over 10 years, so I don't think the precondition, as was stated in the assessment, in the Senate report, and in your third paragraph, is being met in terms of.... I don't think people need the regulations in order to make the investments that people are saying they must have, both for the infrastructure and the training and operation.

I guess my concern is about what we've heard from the previous panel in terms of liability and what actually is going to happen here. We heard about three different situations: a multi-jurisdictional one, a large reserve in terms of the Blood Tribe, and then a small Ermineskin First Nation that has to get its water from elsewhere.

If you ended up with a Walkerton, if you ended up with a situation where people have gotten sick or even have died, what happens after this legislation in terms of the liability?

[Christopher Devlin]

That's going back to clause 11 of the bill. When those questions came up earlier, I went through the bill. Really, it allows for the same kinds of defences for people to assert. Some of the concerns were that there would be a transfer of liability from the federal government to first nations.

I would make two comments. One is that it doesn't actually say “a transfer of liability”. What it does is say that any person or body that is involved in this is “entitled to the same limits on liability, defences and immunities as those that would apply to a person or body exercising” their power or performing those duties “under the laws of the province”. It basically allows for the same kinds of defences to exist on the reserve in the federal context as there would be off the reserve in that respective province. That's the first comment—

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

In Akwesasne, you have two provinces.

[Christopher Devlin]

Right, and so then the question would be, well, you have a conflict of laws there, so which one would apply? The answer is that we don't know. I think Akwesasne would like to have its own water management regime in place, and then they would tell you whether there were any limits and defences.

The second point I would make is that in all three subclauses under clause 11, it's noted that those limits on liability, defences, and immunities are subject to potentially being changed in the regulations. So again, we really don't know the extent of which limitations on liability and possible defences that a first nation or a first nation corporation running a water management or treatment system would have.

As to whether those would exist as they exist off reserve in the province, we won't know the answer to that question until the regulations themselves are developed, because the regulations may add additional defences and limits on liability, or they may take away. We just don't know at this point.

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

Paragraph 11(3)(a) reads,“no person has a right to receive any compensation, damages, indemnity or other relief from Her Majesty in right of Canada”.

That seems like it's been moved.

[Christopher Devlin]

Well, Canada has been protected, but then whoever the other party is in subclause 11(3) is able to rely on the same defences as they would off reserve in the province, except as that may be amended, changed, enhanced, or detracted by the regulations. At the end of the day, we're not really going to know what that is until it is in the regulations.

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

Say in the situation where they have waited 10 years for this plant and the department has not given them what they need to do this, and then... Christian Island, where I've been, where they are waiting for a fabulous new plant, waiting for the membrane that they need, they didn't get the resources from the department. I think what the chiefs and grand chiefs are saying is that somehow, when the government, the crown, doesn't give them what they need to do their job of safe drinking water, all of a sudden, miraculously it's the band's fault.

[Christopher Devlin]

That is a concern. And again, this is one of the problems with having framework legislation. Until we see the actual regulations that would apply to that particular reserve, we really just don't know the extent to which that first nation community is liable, or if it's the neighbouring municipality that's made liable by the federal government, for example. We just don't know. We need to see those regulations. That's one of the limits of discussing framework legislation: it's very much going to be dependent on the regulations that are going to apply to the particular first nations.

[The Chair, Conservative, Chris Warkentin]

Thank you, Ms. Bennett. Your time has expired.

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

It seems you could pay fines, go to jail, because the department—

[The Chair, Conservative, Chris Warkentin]

Ms. Bennett.

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

—didn't give you what you needed to do your job.

[Christopher Devlin]

Potential.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Ms. Ambler, we'll turn to you now for the next round.

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you, Mr. Chair.

Thank you to both of our sets of witnesses for being here today. I really appreciated your testimony.

I wanted to address a comment that you made earlier, Mr. Devlin, about resources, and specifically that they have to be allocated. I was hoping to talk about this in the earlier panel. Were you there for that? Yes. Because there was so much talk about inadequate resources, I looked up what the federal government has invested since 2006 in first nation water and wastewater infrastructure. As a global figure it's $2.5 billion. In April 2008 the government announced $330 million, a two-year investment in a first nations water and wastewater action plan, as well as $193 million over two years for the completion of projects related to infrastructure. Ongoing annual departmental A-base investments of $197.5 million, that's annual. In budget 2010, the first nations water and wastewater action plan was extended for two more years to an additional $330 million. There's probably more; that's all I could find.

There's a commitment as well, within the development of the regulatory framework, to add to that, knowing that the way a legislation is developed will have to provide for additional capacity on reserves to provide this safe drinking water. I don't know if you heard the Chief Rose Laboucan talk about the fact that there was a $6-million plant investment made on her reserve and that it's not working well enough. I guess my question to you is, when you're talking about adequate resources, is there anything more this government could be doing?

[Christopher Devlin]

I love those open-ended questions. In terms of the action plan, I note in the legislative summary that it wasn't renewed after March 31, 2012.

[Stella Ambler, Conservative, Mississauga South, ON]

Is that the $197.5 million annual?