Indigenous and Northern Affairs Committee on May 30th, 2013

[The Chair, Conservative, Chris Warkentin]

Colleagues, I want to thank you for being here this morning. We are continuing our consideration of Bill S-8 today in this 76th meeting of Standing Committee on Aboriginal Affairs and Northern Development.

Today we are joined by departmental officials who will be here for our assistance if necessary. Feel free to turn to them if in fact there is a question that they might be able to help you with as it relates to the consideration of the legislation we have before us.

If our officials will introduce themselves, we'll do that and then get into clause-by-clause.

[Jamie Lafontaine, Program Manager, Environmental Public Health, Interprofessional Advisory and Program Support, First Nations and Inuit Health Branch, Health Canada]

I'm Jamie Lafontaine, program manager in the environmental public health division, Health Canada.

[Karl Carisse, Senior Director, Innovation and Major Policy Transformation Directorate, Department of Indian Affairs and Northern Development]

Good morning. I'm Karl Carisse. I'm senior director with Aboriginal Affairs in the community infrastructure branch.

[Andrew Ouchterlony, Counsel, Operations and Programs, Legal Services, Department of Justice]

I'm Andrew Ouchterlony, Department of Justice, in the legal services unit at Aboriginal Affairs and Northern Development.

[Lee-Yong Tan, Legal Counsel, Legal Services, Department of Justice]

I'm Lee-Yong Tan, Department of Justice, legal services, Health Canada.

[The Chair, Conservative, Chris Warkentin]

Thank you for being here this morning. We appreciate your willingness to join us.

Colleagues, pursuant to the order of reference of Wednesday May 8, 2013, we'll now proceed to the clause-by-clause consideration of Bill S-8, an act respecting the safety of drinking water on first nation lands. Pursuant to Standing Order 75(1), consideration of clause 1, which is the short title, and the preamble are postponed.

We'll move on to clause 2, where some amendments have been proposed. We can only consider this if.... The amendments to the interpretation section of this bill can occur only if amendments have been adopted to warrant amendments in this part of the bill, so we will deal with clause 2 after we deal with the consideration of the schedule.

(On clause 3—Aboriginal rights)

We'll move to clause 3, where we have amendments NDP-1 and Liberal-1. These amendments are identical. We'll turn to NDP-1. If NDP-1 is adopted, we will obviously not hear from Liberal-1. If NDP-1 is defeated, Liberal-1 will be also.

Jean.

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

Thank you, Mr. Chair.

With amendment NDP-1, what we're doing is actually turning clause 3 into a true non-derogation clause by removing this line: “except to the extent necessary to ensure the safety of drinking water on First Nation lands”.

I want to refer back to the brief provided by the Canadian Bar Association. I want to read into the record their statement on this. They say:

We believe that the qualification “except to the extent necessary to ensure the safety of [the] drinking water on First Nation lands” is in itself an explicit abrogation or derogation of existing Aboriginal or treaty rights pursuant to section 35 of the Constitution Act, 1982. The qualification in section 3 of Bill S-8 does not, in our view, ameliorate the constitutional problems identified in our earlier submissions on Bill S-11.

We have been unable to find any precedent or explanation for this proposal which would still, in our view, abrogate or derogate from section 35 rights under the Constitution Act, 1982 in order to provide safe drinking water to First Nations. This provision raises two key issues:

[I]s it necessary to implement the objectives of the bill?

[I]f so, is it constitutionally valid? Can Parliament use its legislative power under section 91(24) to abrogate or derogate unilaterally from the rights protected by section 35?

The attempt to abrogate and derogate aboriginal and treaty rights by statute or regulation would set a dangerous precedent and should not slip by without full explanation and discussion.

Mr. Chair, I encourage all members to support this amendment.

[The Chair, Conservative, Chris Warkentin]

Mr. Rickford.

[Greg Rickford, Conservative, Kenora, ON]

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.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Ms. Hughes.

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

Thank you.

In support of our amendment, I'd like to refer you back to the Canadian Bar Association.

They specifically said:

While the wording about section 35 of the Constitution Act, 1982 in the previous Bill S-11 has been revised, section 3 of S-8 remains problematic. We believe that the qualification “except to the extent necessary to ensure the safety of the drinking water on First Nation lands” is in itself an explicit abrogation or derogation of existing Aboriginal or treaty rights pursuant to section 35 of the Constitution Act, 1982. The qualification in section 3 of Bill S-8 does not, in our view, ameliorate the constitutional problems identified in our earlier submissions on Bill S-11.

Then it goes on.

Obviously, this is coming from the Bar Association. Maybe the legal representation would like to comment on this as well.

[The Chair, Conservative, Chris Warkentin]

Ms. Hughes, do you have a question for a witness?

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

Well, in regard to the current wording in the proposed legislation in this particular clause, I'm just wondering whether the department agrees that this is a problematic area, given that the Bar Association has defined it as that.

Do they agree with the Canadian Bar Association?

[Karl Carisse]

I think it could help if we give an example of why the clause is written that way.

If we look at the situation that unfortunately happened in Walkerton, it was cattle grazing near the community's wellhead that led to E. coli in the water source. That's what contaminated the water. Now, there were a bunch of issues afterwards with the operations and the operators as to why there was some contaminated water that went to the community, but that's the root of the issue of what happened in Walkerton. This is what with this clause we're trying to prevent in any community.

Maybe there is a certain perceived aboriginal right—we'll take that example—for cattle to graze or for a homeowner to have that cattle graze near the community wellhead, but it makes a lot of sense for health and safety to ensure that there's a certain limit around the wellhead where you wouldn't have that activity being done.

This is simply to replicate what exists off reserve right now in regulations. There are regulations that state that for a certain number of feet around a community's wellhead, you're not allowed to use the land for certain purposes. Without that last part of that clause, we may be stuck in a situation where that would actually happen. We have to remember that this will not be done unilaterally. We're going to work with first nations to develop the regulations. This gives us the power while we're negotiating the regulations to give that specific instance to protect source water, just for the safety of the community.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Mr. Genest-Jourdain.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Chair, I have a simple comment to make.

Associating the blame for a threat to safe drinking water with the exercise of existing rights or treaty rights under section 35 of the Constitution Act, 1982, is questionable. In fact, we know that the real threat is much more rooted in natural resource extraction initiatives, which at the end of the day, indigenous nations are not very interested in. I have my doubts about this because it suggests there could be a threat associated with the exercise of ancestral or treaty rights.

I submit that.

[The Chair, Conservative, Chris Warkentin]

Thank you.

I don't see any other speakers to the amendment.

Ms. Hughes.

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

Just on that note, again, would you clarify whether or not...? Because they indicate that it abrogates and derogates from section 35 the rights under the Constitution Act of 1982.

If it does, is this section, as worded, actually constitutionally valid?

[Andrew Ouchterlony]

I'd like to start by mentioning that this issue is complicated by the fact that no courts have been asked to decide or interpret a non-derogation clause. We're in that situation. However, in answer to your question, this clause is an interpretive provision rather than a substantive provision.

The idea that the clause abrogates or derogates itself, I would not agree with that understanding of it. It is meant to be used as an interpretive tool. If a court were asked about a provision in the regulations, for example one that restricted an activity on reserve lands, and if that were challenged, this clause could be used to help the court try to interpret the relationship between that regulation, that provision, and the constitutional protection in section 35.

Federal legislation cannot reduce the protection that is provided by the constitution. What this clause is meant to do is preserve and continue to allow the government, if a claim is made against a regulatory provision, to continue to make arguments as to why that infringement, if it's been determined there's been an infringement, is justified.

Essentially it's to preserve the common law, which was mentioned, the Sparrow test for justification. There are differences in understandings and the department has a different understanding from what's presented by the Canadian Bar Association.

[The Chair, Conservative, Chris Warkentin]

Thank you very much. I'm not seeing any additional speakers to NDP-1, so we'll now vote.

(Amendment negatived [See Minutes of Proceedings])

As a result, Liberal-1 fails.

Moving on to a vote on clause 3.

(Clause 3 agreed to)

There's been a proposal for NDP-2. This is under new clause 3.1, maybe Ms. Crowder would like to move that.

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

I'd like to move that this act does not apply to a first nation for three years after the day on which this section comes into force if, on that day, the first nation is a first nation as defined in subsection 2(1) of the First Nations Land Management Act.

We saw this particular clause introduced in matrimonial real property to allow the first nations who were in the process of developing their own matrimonial real property codes the time to actually move forward with that. We quite clearly heard from Akwesasne in their testimony that they're very close to reaching an agreement. I'm sure there are other first nations who are in the same place, where they're close to reaching agreements on self-government or the type of arrangement that Akwesasne has, and are concerned about being caught up in this process when they fully intend to occupy the space in terms of developing their own regulations.

This would allow the time for that to unfold and not put them into a position where they're having to deal with two different regimens in a short period of time. I think it sounds like a reasonable amendment.

[The Chair, Conservative, Chris Warkentin]

I do have a ruling here, as you are aware. I think the NDP have been notified of this intention.

The House of Commons Procedure and Practice, second edition, states on page 766, “An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.” Therefore in the opinion of the chair the amendment attempts to introduce a new concept that is beyond the scope of Bill S-8, and therefore it is inadmissible.

(On clause 4—Recommendation of Minister)

Moving to clause number 4, we have NDP-3.

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

Thank you, Mr. Chair.

In this amendment we are introducing the concept of the preparation and implementation of a drinking water safety plan and the audit of drinking water safety plans by third parties and the results of such audits.

I want to refer to two pieces of testimony that we heard with regard to this. The first one is from Dr. Hrudey who indicated that the regulations in themselves will not provide for safe drinking water. He specifically referenced the fact that the World Health Organization approach calls for every water system to develop its own drinking water safety plan. He went on to say that smaller systems in particular face greater risks of producing unsafe drinking water and that places like Alberta are moving toward a mandatory drinking water safety plan. He goes on to say that drinking water systems for Canada's first nations are essentially all small systems and many also face additional challenges because they are remote.

As well, the Canadian Environmental Law Association introduced the concept around barriers. They are talking about a multi-barrier approach. They referred to the types of recommendations that came from both Walkerton and North Battleford. They indicated there should be a number of factors, and many of these factors would be included in a safe drinking water plan. These include things like drinking water protection systems should: include source water protection; provide binding drinking water standards; include reliable certification of operators, reliable certification of labs, clear oversight and reporting responsibilities, clear delineation of roles of the various organizations, clear and comprehensive monitoring and testing of drinking water, and reporting of adverse events; clearly delineate responsibility for responding to adverse events with clear protocols; provide for public involvement of community members' disclosure and transparency and a means of receiving expert third-party advice, such as from the Ontario Drinking Water Advisory Council; clearly outline resources and funding mechanisms for remote and small systems; and provide for infrastructure planning over time.

On this last point around resources we heard this over and over again, that communities simply do not have the resources to develop a drinking water plan or to respond to the regulations. The Canadian Environmental Law Association went on to say that this is vague enabling legislation and there needs to be a clear vision articulated before legislation is passed. We haven't seen that.

A great deal of the discomfort centres around the fact that people don't know what they're getting into with this. Quite frankly, they have no trust that the government will consult appropriately because in the preamble it just says “working with First Nations”. It doesn't lay out a consultation process. Consultation processes to date have failed to meet the test for first nations in being acceptable.

That's my rationale behind this amendment.

[The Chair, Conservative, Chris Warkentin]

Thank you, Ms. Crowder.

I should note that if NDP-3 passes so will NDP-13 as it applies, and likewise if it fails, the other fails as well.

Mr. Rickford.

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Mr. Chair.

I appreciate the member's contribution to this particular amendment. I want to be clear that according to the World Health Organization, its water safety plan approach is based on risk assessment, prioritization, and management of the water supply. Bill S-8 is enabling legislation with language worded in broad terms so regulations can be created to address a variety of needs.

As it's currently written, Bill S-8 does not prevent the adoption and implementation of the water safety plan approach. The government is committed to work with first nations and other stakeholders to develop federal regulations tailored to the needs of each region. That has been equally clear here at committee. Bill S-8 allows regulations to be adapted to the local context and determined in close collaboration with stakeholders and includes allowing communities to incorporate a water safety plan approach.

The adoption of this clause, in combination with other proposed amendments dealing with water safety plans, would allow the regulations developed under Bill S-8 to require that all first nations adhere to a water safety plan approach. This would reduce the flexibility of the legislation and could limit the potential for regulations to be tailored to the specific needs of first nations in respective regions.

Thank you, Mr. Chair.