Mr. Speaker, I rise to speak to Bill S-8, An Act respecting the safety of drinking water on First Nation lands. I am going to start differently than I planned because I want to respond to something that both the minister and the parliamentary secretary addressed in their speeches or their questions.
I want to start with a quote from the UN Declaration on the Rights of Indigenous People. Article 18 says:
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decisionmaking institutions.
Article 19 says:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
It was interesting to hear people describe the consultation process as engagement. It is an interesting twist of words, because when we talk about full, prior and informed consent, I am sure that many nations would argue that engagement does not equal full, prior and informed consent. I want to turn for a moment to some comments about the engagement or so-called consultation process.
The Safe Drinking Water Foundation, in a position statement it issued on April 14, 2009, talked about this engagement process. It said that few first nations voices were heard at the engagement sessions, but enough were present that INAC was able to claim that they were engaged. It said that many first nations in Manitoba, Saskatchewan and Alberta did not receive their engagement session invitation packages in sufficient time for people to attend the sessions. For example, George Gordon First Nation received its package on January 25 at noon when the engagement session was taking place the following day in Saskatoon, three hours away. Of course, we know what winter road conditions can be like in Canada at that time of year, so it adds an additional stress.
In addition, the Safe Drinking Water Foundation said that civil servants dominated conversations in each discussion group, offered incomplete and inaccurate information and failed to relay first nations' concerns to the larger audience. The INAC official report omitted all of that.
Consultation is all in the eye of the beholder. There are some guidelines that first nations have proposed in terms of what meaningful consultation would look like. I have been hearing from people who do not feel this process fulfilled that responsibility to consult.
I want to turn to the legislative summary of the safe drinking water first nations act that was put out by the Parliamentary Library so that people understand what it is we are talking about today. In the legislative summary it says:
The bill provides for the development of federal regulations governing the provision of drinking water, water quality standards and the disposal of waste water in First Nations communities...the bill also establishes that federal regulations developed in this regard may incorporate, by reference, provincial regulations governing drinking water and waste water in First Nations communities.
It goes on to say:
The delivery of safe drinking water to on-reserve First Nations communities is critical to the health and safety of the communities’ residents. Access to safe, clean, potable water is also closely tied to the economic viability of individual communities. For more than a decade, research has indicated that many First Nations communities lack adequate access to safe drinking water. A 2001–2002 assessment found that the quality of almost three quarters of drinking water systems in First Nations’ communities were at significant risk.
I know some of those numbers have changed since then and I will talk about the waste water and drinking water assessments that the government commissioned.
Later on in the legislative summary it indicated some key challenges. It says:
In addition to the absence of a regulatory framework and the lack of clarity regarding roles and responsibilities...core issues relating to the provision of safe drinking water on reserves include the high costs of equipment for, and construction and maintenance of, facilities in remote locations; infrastructure that is either obsolete, entirely absent or of low quality; limited local capacity and ability to retain qualified or certified operators; and the lack of resources to properly fund water and waste water system operation and maintenance.
All of us in the House would agree that there are significant challenges on first nation reserves about access to safe quality drinking water and to the functioning of the waste water treatment systems.
In my own riding of Nanaimo—Cowichan there is the St'át'imc reserve which butts up against the municipality of Nanaimo. We literally have a reserve that is in an urban area and there has just recently been an agreement to allow the extension of the water system, but the reserve has been there for decades.
The ability of the residents to engage in economic development on their recognized traditional lands has been hampered by the fact that they do not have access to clean water. In fact, on one of the reserves they are trekking in water. This is a reserve right beside the city of Nanaimo. We are not talking about some remote reserve hundreds of miles away that is accessible by air only, or ice road, or sealift.
Therefore, this is not just a rural and remote community problem. There are reserves close to urban areas that do not have the infrastructure to not only supply safe drinking water, but to enable them to engage in the economy in a more meaningful way.
Back in 2005, the report of the Commissioner of the Environment and Sustainable Development also highlighted the problem of drinking water for first nation communities. I want to touch on a couple of points here.
The report noted that when it came to the safety of drinking water:
—residents of First Nations communities do not benefit from a level of protection comparable to that of people who live off reserves.
It goes on to say that:
Despite the hundreds of millions in federal funds invested, a significant proportion of drinking water systems in first nation communities continue to deliver drinking water whose quality or safety is at risk. Although access to drinking water has improved, the design, construction, operation, and maintenance of many water systems is still deficient. Moreover, to a significant extent, the success of the First Nations Water Management Strategy depends on INAC and Health Canada addressing the management weaknesses we have noted.
The report talks about a number of management weaknesses between the departments. It goes on to say:
The technical help available to First Nations to support and develop their capacity to deliver safe drinking water is fragmented. Given that most First Nations communities have fewer than 500 residents, and that providing drinking water has become more complex, the development of institutions that can provide ongoing technical support is critical to a continuing supply of safe drinking water for these communities.
In part, many first nation communities have relied on tribal councils to help them with technical advice and organizational administration. In the last round of budget cuts, we saw tribal councils had their funding cut. That is going to significantly impact on some of these smaller communities' ability to deal with some of these very complex issues.
The report, “Drinking Water on First Nations Communities” also highlighted some challenges . It is important to state this because it is a very complex problem. It says about location:
Many First Nations are located on the Canadian Shield, or other difficult terrain, making it technically difficult and costly to provide water services. Some reserves are isolated and can be accessed by roads only in winter; some have limited access to electricity or other forms of energy. Water sources are often located off reserves, and it is difficult for First Nations to protect them.
Interestingly, on the difficulty of protecting water, we have just seen a number of waterways no longer included in the Navigable Waters Protection Act. Many of those waterways on first nation reserves are no longer protected. Did the department do an analysis of what this change in the Navigable Waters Protection Act would have in the context of this legislation? I understand from a briefing from government officials that it has not been done.
It is a very important question. If first nations cannot protect their waters by whatever means available to them, one questions how they would improve the quality of the drinking water.
Other challenges include accountability. The report says:
Federal departments set requirements that make First Nations responsible for providing day-to-day drinking water. It is not clear who is ultimately accountable for the safety of drinking water.
Costs and financing...It is difficult to find and retain operators.
Technical standards. It is not clear which standards are applicable. Provincial guidelines and regulations on drinking water are to be applied except when less stringent than federal standards.
The population growth on reserves has been noted in report after report. This report says that:
On-reserve population is estimated to increase by 230,000 people between 2004 and 2021. It is difficult to estimate population growth and economic development in each community to plan water systems that can meet drinking water needs for 10 to 20 years.
It is a very challenging environment that we are operating in.
In the Report of the Expert Panel on Safe Drinking Water for First Nations, there was a number of matters that it highlighted.
First, it states:
Pursuing “laws of general application” is too uncertain
If it could be established that provincial laws of general application applied to Indian reserves, legal frameworks would be instantly in place and a great deal of consultative and Parliamentary process avoided. However, in the view of legal counsel to the panel, applying provincial drinking water and wastewater law as a law of general application is “fraught with such uncertainty that it is neither a viable nor effective option.”
We know that provincial laws differ from province to province so there will be a very uneven level of water quality standards from province to province, depending on which province the first nation resides.
It report says that before there is any legislation that there are preconditions that must be in place before legislation moves forward. The first is, “Provide resources, discuss and deal with high risks”. It says:
The federal government must close the resource gap
First, and most critically, it is not credible to go forward with any regulatory regime without adequate capacity to satisfy the regulatory requirements. While it is tempting to assume that putting a regulatory regime in place would reduce the dangers associated with water systems, exactly the opposite might happen. This is because creating and enforcing a regulatory regime would take time, attention and money that might be better invested in systems, operators, management and governance.
But the problem is more fundamental than the resources that would be lost to creating a regulatory regime. The underlying issue is that the federal government has never provided adequate funding to meet the 1977 policy commitment of comparable facilities on reserve....If funding were supplemented to cover only the costs of a regulatory regime, the gap would continue.
We therefore see it as a precondition to moving forward on any of the viable options that the federal government must finally close the resource gap. It must provide, over a reasonable period, the funding needed to ensure that the quality of First Nations water and wastewater is at least as good as that in similar communities and that systems are properly run and maintained.
That is a precondition.
It also goes on to say that discussion with first nations is essential. It says:
The second precondition is the need for the federal government to assess whether it has a legal duty to consult with First Nations affected by any of the three options. This duty, according to the Supreme Court arises “when the Crown has knowledge, real or constructive, of the potential existence of the aboriginal right or title and contemplates conduct that might adversely affect it.”
As the minister pointed out, it indicates in the preamble that it will work with first nations, but nowhere is that working relationship defined. Because of the ongoing mistrust with the government, that relationship needs to be clearly spelled out about how first nations will be consulted, not just engaged, in the development of these regulations, as we saw from other consultative processes.
I spoke this morning to Bill S-2 about the so-called consultative process that was conducted with matrimonial real property. Wendy Grant-John tabled a very thorough report and many of the critical recommendations were disregarded when Bill S-2 was brought forward. Therefore, not only must the consultation process be outlined and resources attached to it, but there must be a commitment that when that consultation process is completed, the recommendations that come forward be actually incorporated into the regulations.
Finally, one of the other preconditions was, “Deal with high-risk communities immediately”. It says:
—any of the options would take time – probably several years – to reach the ultimate goal of safer drinking water for all First Nations. In the meantime, however, many reserve residents face serious risks from the drinking water available to them, sometimes from collective systems but...often from individual wells or other water sources.
It talks about the fact that we cannot just wait for the regulations to be developed or legislation to move forward. Rather we have to actually deal with the high-risk systems.
I want to touch briefly on the National Assessment of First Nations Water and Wastewater Systems. As I indicated earlier, in early 2000 a significant number of wastewater systems and water quality systems were at risk. That number has come down. I will give the government credit to the extent to which it has invested money over the years, so the numbers have reduced, but we know it has not been enough.
To provide a couple of really important numbers on this, nationally 571 of the 587 first nations, 97%, participated in the National Assessment of First Nations Water and Wastewater Systems study. That is important.
It says that “12 First Nations have no active infrastructure on reserve lands, in some cases [this was] as a result of recent or ongoing land claim settlements”.
Under the heading “Individual Systems”, the document states that “[a]n assessment was completed for approximately 5% of the individual well and septic systems”. Some of these numbers are still staggering. It goes on to say:
36% of the individual wells sampled did not meet the requirements of the GCDWQ for a health related parameter (i.e. arsenic, barium, bacteriological, etc.) and 75% did not meet the GCDWQ for an aesthetic parameter (i.e. hardness, sodium, iron, manganese, etc.). Approximately 47% of the septic systems assessed had operational concerns identified, which were usually attributed to limited maintenance (not pumping out septic tank regularly), leaching beds installed in inappropriate soils and age....
It then states, “A risk assessment has been completed for each water and wastewater system according to the INAC Risk Level Evaluation Guidelines”. Overall, of the 807 water systems inspected, 39% were categorized as high overall risk, 34% were categorized as medium overall risk and 27% were categorized as low overall risk. Therefore, 73% of the systems have some level of risk.
There have been some improvements. We know the number of boil-water advisories has decreased. However, there are still significant problems with the water systems.
That leads me to a comment that I made earlier around the need to invest in the capacity for these water systems for first nations. Later on in the report, it did indicate:
Small water systems are generally found to have a higher risk rating than larger water systems. In many cases, these small facilities were not designed to meet current protocols and do not have the same level of resources available for operation as larger systems. In addition, the overall risk of a system appears to increase with remoteness.
Of the high risk systems, 150 systems serving 16% of the on-reserve population are flagged as high risk as a result of a bacteriological exceedance.
Of the 532 waste water systems inspected, 14% were categorized as high overall risk and 51% were categorized as medium overall risk. Again, what we are seeing is that there continues to be significant risk attached to both the water quality and to the waste water systems.
The report also made an estimate about what was required to upgrade to meet the protocol. The report said, “The total estimated construction cost to meet protocol is $1.08 billion”. That is a lot of money. However, we are talking about people's health and safety. It says:
[These] requirements...are considered to be related to health and safety, providing minimum levels of treatment, providing firm capacity, standby power and best management practices.
Members can see that the scope and the magnitude of the problem are very serious.
Groundwater is an important source and in a paper that was put forward by Sarah Morales, a submission to Expert Panel on Safe Drinking Water, she pointed out that it is estimated that 750,000 people in British Columbia, and this is not just first nations, rely on groundwater as their drinking source. She said that protection of this drinking water source had become a major issue in British Columbia where the aquifers, underground sources of water, and so on, were at risk. She also said that the bacteriological contamination of private domestic wells was an issue across the province.
Members can see how important it is for whatever regulation or legislation we put in place to be effective in terms of dealing with water quality. It is also important that first nations have the resources they require to construct and maintain, and to train their operators, and that there is a meaningful consultation in the development of these regulations.
Based on what we have before us, unless there is some serious amendment to this piece of legislation, New Democrats will not be able to support it.