Thank you.
I appreciate my colleague's input on this matter. The non-derogation clause included in Bill S-8 addresses the relationship between the proposed legislation and the protection of aboriginal and treaty rights under section 35 of the Constitution Act, 1982. This clause specifically excludes from its scope any derogation or abrogation that is necessary to ensure the safety of first nations' drinking water.
Under Bill S-8, to be clear, a regulation could be created to limit activities on first nation lands around sources of drinking water in order to reduce health and safety risks of first nations being exposed to contaminated water. Thus, in the regulations, the rights of first nations to use land in certain ways may need to be infringed in accordance with the Supreme Court of Canada test for justification.
If this clause were changed to a non-qualified non-derogation clause, as has been proposed, it may restrict the protection of source water on reserves. As demonstrated in previous Supreme Court rulings, legislation can validly affect the exercise of aboriginal rights if it meets the test for justifying interference with a right. That was set out in R. v. Sparrow. Including this non-derogation clause is meant to support the objectives of the bill, and in particular, the protection of source water on reserves.
Thank you, Mr. Chair.