Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 17 - Evidence - February 9, 2011
OTTAWA, Wednesday, February 9, 2011
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-11, An Act respecting the safety of drinking water on first nation lands, met this day at 6:45 p.m. to give consideration to the bill.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: Good evening. I welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples. They will be watching either on CPAC or possibly on the web. I am Gerry St. Germain from British Columbia, chair of the committee.
The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally. A number of reports have highlighted key challenges in the delivery of safe drinking water in First Nations communities, including aging water systems, certification and training of operators, lack of independent resources to fund system operations and maintenance properly, and the lack of clarity with regard to roles and responsibilities.
This evening we continue our study of the legislation designed to address this subject matter, Bill S-11, An Act respecting the safety of drinking water on first nation lands.
We will hear from four witnesses and from three organizations: The Assembly of Manitoba Chiefs, the Union of British Columbia Indian Chiefs, and the Institute on Governance.
[Translation]
Before we hear from out witnesses, I would like to introduce those members of the Committee in attendance this evening.
[English]
Senator Dallaire is from the province of Quebec. Senator Banks is from Alberta. Senator Demers is from the province of Quebec. Senator Brazeau is from Quebec. Senator Poirier is from New Brunswick. Senator Stewart Olsen is also from New Brunswick. Senator Raine is from British Columbia. Senator Patterson is from Nunavut.
Members of the committee, please help me in welcoming our first witnesses, from the Assembly of Manitoba Chiefs, Grand Chief Evans, and from the Union of British Columbia Indian Chiefs, Robert Chamberlin, who is the vice- president. This is a unique situation. I was born in Manitoba, and I live in British Columbia. We are represented here by Manitoba and British Columbia.
Grand Chief Evans, if you are ready with your presentation, you will be followed by the testimony of Mr. Chamberlin, and then questions from the senators. If you want to change order, I am fine with that change.
Ron Evans, Grand Chief, Assembly of Manitoba Chiefs: Mr. Chamberlain would like to say a prayer, and I agree.
The Chair: We would be honoured if you said a prayer. Grand Chief, you are now in charge.
Chief Robert Chamberlin, Vice-President, Union of British Columbia Indian Chiefs: It is a brief prayer song. I think it is appropriate to sing at times of discussions like today. It speaks of reaching to the Creator for help. It speaks of having a life of purpose and seeing a better future for our children. It captures many of the aspects of what we all pursue in leadership. It is a brief song.
[The witness sang in his native language.]
The Chair: Thank you, Mr. Chamberlin.
Mr. Evans: Thank you, Vice-president Chamberlin, for the opening song and prayer.
Honourable senators, we thank you for the opportunity to present our views on this proposed bill and the position of the Manitoba First Nations. The Assembly of Manitoba Chiefs does not support a legislative measure as an option to address safe drinking water needs for First Nations. Water is a fundamental and integral part of our inherent Aboriginal and treaty rights and must not be circumscribed by legislation. Thus, decisions affecting our water rights must be made on a nation-to-nation basis and in accordance with free, prior and informed consent.
We have grave concerns with the intent of this bill and the overall lack of effective and meaningful consultation from the federal government. In our opinion, a one-day engagement session introducing a "made-in-Manitoba approach'' was not sufficient opportunity to have a dialogue with the federal government on this issue.
As per the AMC Chiefs-in-Assembly resolution, we laid out recommendations to ensure meaningful consultation and accommodation processes. These recommendations include developing a strategy that identifies and addresses impacts to inherent and treaty rights and opening the proposed legislative process to ensure the review of all three options provided by the Expert Panel on Safe Drinking Water. They include providing essential capacity and resources to participate in the process in a realistic time frame, and ensuring ongoing effective communication and opportunity to provide recommendations throughout the process.
Further to this, we recommend that opportunity be provided to discuss whether the existing protocols are the appropriate avenue to ensure safe drinking water. As the current bill stands, it offers no definite assurance for First Nations jurisdiction, authority or decision making. If the intent is to erode our inherent and treaty rights by assuming ownership and jurisdiction over our waters, while at the same time offering no significant investments to our communities, then we cannot accept legislation and the intentions of government.
First Nations currently deal with a fundamental funding crisis every day. The 2 per cent cap since 1996 has resulted in financial hardship, while the cost of living has soared. First Nations, under the Protocol for Safe Drinking Water in First Nations Communities, are now considered the sole owners of water plants and thus are ultimately responsible for all liability. Where is Canada's fiduciary responsibility in this unilateral decision? Securing insurance to address liability is difficult when dealing with scarce funds for overall water management.
The resource gap must be addressed to bring our communities up to standards first and new funding must be identified to address new water and wastewater infrastructure; upgrade deficient facilities; address operation and maintenance; and address increased Circuit Rider trainers and operators and their required administration.
In communities where there is a water plant, there is only one water operator who is expected to be on call 24-7 every day of the year. This is a human and health risk for both the operator and the community.
In Manitoba, our First Nations face serious challenges every day. The Winnipeg Free Press brought attention to the Third World conditions, particularly in the Island Lake First Nations, where many have no water or waste water infrastructure in their homes. In this day, the use of buckets to transport water and indoor pails lined with garbage bags as toilets is unacceptable. This situation is simply disgraceful for a country like Canada. This will not be remedied through a piece of legislation that is high on enforcement when First Nations cannot even meet the basic requirements for safe drinking water.
This is a public health and safety issue that justifies the need to bring our First Nations up to standards comparable with the rest of Canada before considering a legislative route.
The bill will not solve First Nations issues, as they are greater than what the title alludes to. We call on Canada to uphold its fiduciary responsibility and duty to consult in a meaningful way by working with First Nations. We call on Canada to exercise its ratification and respect the United Nations Declaration on the Rights of Indigenous Peoples. Article 19 states:
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.
In conclusion, we recommend that Bill S-11 die and that you join us to work together in addressing the Third World conditions in our communities by ensuring that infrastructure is in place within our communities so we have access to safe drinking water. We ask that you work with us to provide an opportunity for true collaboration in the spirit of the United Nations Declaration on the Rights of Indigenous Peoples.
Ekosani. Meegwetch. Mahsee cho. Wopida. Merci.
I thank you for the opportunity to present on behalf of the Assembly of Manitoba Chiefs.
The Chair: Thank you very much, Grand Chief.
Mr. Chamberlin, you have the podium.
Mr. Chamberlin: Thank you.
[The witness spoke in his native language.]
My traditional name is O'wadi. I am from the village of the Kwicksutaineuk-ah-kwaw-ah-mish. I have asked you to hear my words tonight. I am speaking from my heart on behalf of all the tribes found within the Union of B.C. Indian Chiefs. We enjoy a membership of 99 of the 203 First Nations in British Columbia. We have a long history of standing up and advocating for First Nations title and rights, and we lobby the government at every opportunity to ensure that in the activities of the Crown, the Supreme Court rulings and the Constitution of Canada are respected.
I will touch on a number of issues that my friend has already spoken of, but I want to underline many of them. I want to speak with you about the fundamental flaws found within Bill S-11. I want to speak to you about the Constitution of Canada and what it refers to regarding Aboriginal rights. I want to speak to you of the Supreme Court of Canada rulings and the duty to consult and accommodate found within the highest court of this land.
I want to talk to you about the UN Declaration on the Rights of Indigenous Peoples that in November Canada finally endorsed. Honourable senators, it is now time to bring that endorsement to action, and it must happen sooner rather than later.
I want to talk to you about the foundational relationship that First Nations have and the need for proper and adequate consultation to set the table for a good working relationship. I think Canada has made a number of steps in the past years by acknowledging past wrongs and creating an opportunity, an environment, for a repairing the wrongs that have occurred.
I do not like Bill S-11, and I am speaking here on behalf of the Union of British Columbia Indian Chiefs. It appears to me when I read the documents that looking to impose provincial law on reserve lands is a sneaking out of the back door of the Constitution. It does not address the real problem.
The real problem is the resource activity in the watersheds and the groundwater allocations of the province. They conduct their business with an eye towards the bottom line of revenue and profits for companies. I can tell you that in British Columbia it is difficult to find rulings where the provincial government has fully understood, embraced and accommodated Aboriginal rights, particularly when it comes to water, whether that is groundwater or what is happening in the watersheds. There needs to be adequate resourcing now. There needs to be proper and fulsome infrastructure, training and operational dollars.
In addition to that, it is completely unacceptable that Canada looks to offload its liabilities on to First Nations. When the Crown holds in trust our reserve lands and we do not even own them, and Canada decides that, we will own the water system so that we can hold on to the liability for Canada, we respectfully say, "No, thank you.'' "That is simply not good enough.''
It is time that we develop new legislation. We need to put this in a dark corner of the room and leave it alone. We need to develop new legislation based on fulsome First Nation consultation and that addresses the root causes. The Expert Panel on Safe Drinking Water for First Nations clearly identified those causes. The panel went around the country, at great expense to Canada, by the way. Those recommendations need to be embraced in their fullest and broadest form. We must build on the good work that was done by civil servants, and certainly informed by First Nations across the country.
The Union of British Columbia Indian Chiefs is operating here today on Resolution 2010-36, which calls for the abandonment of Bill S-11. We sent a letter to Minister Duncan in November and we have yet to receive a response.
It must be understood that First Nations enjoy a spiritual relationship with water. When I talk of the shortcomings of the federal government's funding for infrastructure found on reserve, I am speaking first-hand. In our village in Gilford Island, we went 10 years without drinking water, under a do not consume order. We enjoyed bottles of water being shipped in, and that was the solution INAC presented.
After spending a number of dollars to bring in an interim solution, they have left us stranded. That is as far as we are going for the next five years. To me, that underlines the kind of resourcing that is necessary to not just cover liability but to meet the need and fully embrace what is found in the UN Declaration on the Rights of Indigenous Peoples.
Article 32 of the UN Declaration on the Rights of Indigenous Peoples states:
Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands and territories and other resources.
States shall consult and cooperate in good faith with indigenous peoples concerned through their own representative institutions in order to obtain their free prior and informed consent prior to the approval of any project affecting their lands or territories . . .
States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures should be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.
The regime proposed by Bill S-11 has serious constitutional consequences for the relationship between First Nations and the Crown, and represents an unwarranted level of intrusion and infringement on the constitutionally protected Aboriginal rights and treaty rights in Canada.
Section 88 of the Indian Act incorporates provincial laws of general application to Indians but not to Indian lands. Think about that — not to Indian lands. What you are about to bring forth is creating a way for that to occur, where provincial laws could apply to government activities on reserve lands. In my respectful opinion, honourable senators, that is not acceptable. It is not consistent with the Constitution of Canada.
When we think about what must be done in terms of consultation and accommodation of First Nations interests, this is clearly defined in a myriad of Supreme Court of Canada rulings, such as Sparrow, Delgamuukw, Haida, and Mikisew Cree. This long list of decisions defines what Canada must do to consult and accommodate First Nations. It is not a pro forma obligation. The courts take this seriously and have made it abundantly clear to the government that their duty to consult must be meaningful.
We are here today to tell you that what has gone on leading up to Bill S-11 is horribly falling short of what the Supreme Court of Canada has given direction to Canada to do to fulfill the honour of the Crown.
We have issues with higher operating in relationship to the Constitution and with how this has been developed in relationship to Supreme Court of Canada rulings, and it is not consistent with the UN Declaration on the Rights of Indigenous Peoples.
Where is there a foundation to go forward with this, in all good conscience, when we look to the very foundations that made Canada the country that it is, so that the Canadians watching this broadcast here can have faith in the system that is here to govern them? These foundational principles are for all of us to walk by, and that includes the government.
We are here to say that Bill S-11 must stop, that the cabinet must exercise its privilege and put a pause to this bill. It must be abandoned. You must embrace the recommendations of the expert panel. You must get out and engage meaningfully with First Nations and adequately resource that activity. It is only then that Canada will be able to demonstrate to Canadians and First Nations alike that the rulings that govern this country are actually meaningful and that the UN Declaration on the Rights of Indigenous Peoples is embraced in a fulsome manner and not one that is just platitudes for the media.
Section 4(1)(r) of Bill S-11 provides for the relationship between the regulation and Aboriginal and treaty rights referred to in section 35 of the Constitution Act, 1982, including the extent to which regulations may abrogate or derogate from those Aboriginal and treaty rights. There are many instances of legislation and other governing tools where there are non-derogation clauses to respect First Nation title and rights. This bill does the opposite; it ensures that is guaranteed to happen.
Clause 6(1) provides states:
Regulations made under this Act prevail over any law or by-laws made by first Nation to the extent of any conflict or inconsistency between them, unless those regulations provide otherwise.
Effectively, the province can walk in and be in charge of what is going on in relationship to on-reserve water, and I say that is unacceptable.
Bill S-11 contemplates a situation in which Canada can impose agreements with provincial and municipal governments or other third-party interests without First Nation consent. That is unacceptable.
In summary, this bill must stop. I turn to you all with a good heart and a good conscience and knowing that with the positions you hold within this construct of democracy called Canada, you will do what is right. When I say that, what I am referring to is only the Constitution of this country, it is only the Supreme Court of Canada rulings, and it is only calling Canada to task on its endorsement of the UN Declaration on the Rights of Indigenous Peoples. That declaration must hit the road at some point, and I say that it must come out during this exercise.
I look forward to reading an announcement that says Bill S-11 is shelved and that meaningful consultation with First Nations will begin with fulsome and adequate resourcing so Canada can live up to and fulfill the honour of the Crown.
I probably took more than the seven minutes you spoke of earlier today. After travelling such a great distance to be here, I wanted to make sure that the points that the Union of British Columbia Indian Chiefs wants to be heard and understood at this level are heard in a fulsome way.
We stand waiting and ready. We want to be a part of the solution. We will commit to work politically with the AFN and other First Nation organizations in Canada to design a meaningful consultation process.
The last thing I want to mention is how can we move forward with Bill S-11 when the national assessment on the state of water on reserves has yet to be completed? Would that not be the road map for the financial obligations that we can anticipate afterwards? How can we move forward and design the legislation without fully understanding the financial implications? It is that very resourcing that we need to have to safeguard First Nations. It is not simply about a liability; it is about life and death for First Nations people.
The Chair: Thank you, Mr. Chamberlin.
I will lead off the questioning. From my information — and this could be skewed a little — consultation has been going on for four years with regard to drafting this legislation. There will be some who will take issue with that, and I do not know to what intensity.
My question is the following: Here we have a health and safety issue. As you pointed out, Mr. Chamberlin, the lives of Aboriginal people are at risk.
How much consultation is enough? I am not trying to be facetious or sarcastic. As you know, there are over 600 First Nations in this country. How much consultation is enough? That is my question, put quite simply.
Mr. Chamberlin: I would say that you need to sit down with the organizations and First Nations in the provinces, wherever they may be found, and have them define that for you. I do not have any kind of authority to describe to you, say in Manitoba, what meaningful consultation would be. We must respect the title holders and their expressions of how they want to be engaged.
The expert panel put forth a number of options. We need to understand what it is that each province and each group of First Nations wishes to have in terms of dialogue. It would be difficult for me to speak of a consultative model and give a detailed description when there is such a vast difference of First Nations situations with relation to water and capacity.
The Chair: I agree with you. I understand that the Supreme Court has ordered that consultation is an absolute must in establishing anything that affects our First Nations people or Aboriginal peoples generally.
I am looking for answers and solutions. I am not looking to trap anyone. I realize it is not easy for someone that represents one unique part of the country to come up with all the responses, but this is a dilemma for us as well.
Mr. Evans: I want to ensure that our position is made known to you on your question.
First, for us in Manitoba, contrary to what government officials have stated in their presentations perhaps, we are here to say that we were not properly consulted. A one-day engagement session in February 2009 does not qualify as meaningful consultation for us.
In answer to your question, the concepts of consultation are found within the United Nations Declaration on the Rights of Indigenous Peoples as "free, prior and informed consent.'' The National Chief stated yesterday that this is an opportunity for the federal government to put that into practice. Why would Canada ratify a document and not put it into practice?
Consultation for us is providing all essential information to our First Nations and having time to review and respond, which we have not had. Consultation is having our recommendations realized. Consultation is having the ability to join the work on any drafting of policies and laws, et cetera. Consultation is providing necessary resources to participate at all levels of communication and decision-making.
The impact analysis where monies were provided to regions in 2009 to assess impacts of INAC's proposed option was not enough time, which was one month, to achieve a proper analysis. That is not proper consultation. There should have been funding for a proper legal analysis to look at all options and then to make a decision on what would work best for our communities. To us, that would be consultation.
The Chair: There were resources put forward, were there not?
Mr. Evans: Not in our experience. In our opinion, we did not have adequate time. For us, there was no consultation. There was just not enough time. When we submitted letters to the Minister of Indian Affairs and to the Minister of Health, stating in a letter our concerns, which I believe you have copies of —
The Chair: Is this a letter of November 2010?
Mr. Evans: Yes.
The Chair: I have not been able to circulate this letter to members because it is not translated. Anyway, I hear you and thank you for the response, Grand Chief Evans.
Senator Brazeau: Thank you for your presentations this evening. I appreciate the concerns that you have put forward, but let me be very blunt. Before I get to my bluntness, I am very passionate about this issue because my home community, my reserve community is one of three high-risk communities across the country with very poor drinking water.
I heard both of you lay out your concerns. I have heard things like you do not support the legislative measures, that you have grave concerns with Bill S-11, that there was a lack of consultation and there is no money attached to this bill. I am glad on the one hand that you both said that you and your organizations represent the chiefs in your respective provinces because I talk a lot to grassroots First Nations people across the country, in your provinces as well. When I talk about the fact that Bill S-11 had been introduced in the Senate, I heard responses back, and I will quote you a few things I heard from grassroots Aboriginal people: "This is a no-brainer.'' "It is about time.'' "Do not let the chiefs oppose this.'' "Do not let the chiefs stall this process.''
You have outlined your concerns. I see this little postcard that was circulated to everyone: "Water is a human right. Do you have running water? I do not and I live in Canada; I need your help.''
As a First Nations person, Bill S-11 is a solution and a response to this postcard and this postcard is fear-mongering. This is a solution. As I said, I am very passionate about this because my community needs clean and safe drinking water just like the 600 First Nations communities across the country need the same. This, again, is a solution.
With all due respect, Chief Evans and Chief Chamberlin, what are your solutions? If we scrap this, tear this apart, then what are the solutions and guarantees you need so that we will pass this and ensure that every First Nations citizen across this country has access to clean and safe drinking water? This is a solution. What is your solution?
Mr. Evans: Thank you, Senator Brazeau, for your comments. First, I need to ask the question, is this about chiefs or about providing clean drinking water?
Senator Brazeau: It is about providing safe and clean drinking water to First Nations people.
Mr. Evans: You say you are passionate. I appreciate and I note how passionate you are. I believe we too are very passionate, and that is why we are here.
As far as fear-mongering, I believe the people for whom that card was created to get the support and awareness of the people in the Island Lake region, as has been revealed by the Free Press. I believe the proposed legislation will not help that community. The solution for us is to deal with the communities in a holistic way. Dealing with clean drinking water will not solve what you are proposing. Your proposed legislation will not do that for us, certainly not in the Island Lake region and many of the First Nation communities in Manitoba.
What we are proposing is that all the partners within the federal government need to work together to deal with our communities in a holistic way, looking at the health of our people and the conditions dealing with poverty and housing. All of these things have been brought to your attention by way of articles in the free press and it just confirms the things we have been saying all along at other Senate committees, whether it is dealing with winter roads, isolation or good nutrition.
Mr. Chamberlin: I would like to respond. Senator, I am here speaking on behalf of the Union of British Columbia Indian Chiefs. I have a clear mandate and direction from 99 chiefs to be here today.
Senator Brazeau mentioned being in British Columbia and speaking with First Nations people, I am curious to know where and when. I have never seen you at the Union of British Columbia Indian Chiefs assembly. I have never seen you at the First Nations summit. I have never seen you at the BCAFN assemblies.
I ask that you respect the fact that there are a number of people put forward to be the leaders of their communities, and those communities are based on bands that flow from origin stories, and that ties us to the land.
This bill, if you will allow me to finish, is seriously flawed. You must look at it and understand that it does introduce a way to infringe upon Aboriginal title and rights that are guaranteed within the Constitution of Canada. That, my friend, is not a solution.
If you want to talk about a solution to this, I say that we need to come up with a meaningful mechanism for Canada to come out, province by province, by any way that the nations are organized, and sit down and have fulsome discussions to understand each region's perspective and relationship to water. Only when that is clearly understood can Canada really begin to develop something that is meaningful and accommodates Aboriginal rights, and that is the solution.
Coming out for a one-off meeting in a province with a few people is not an answer. I would say to you all that it is time we put a stop to this. It is time we find the resources and come out and talk to the regions in a meaningful way, not a one-off session that my friend has talked about. That is inadequate. That is what I would say.
Senator Brazeau: With all due respect, I do not need to be invited by the Union of British Columbia Indian Chiefs, the BCAFN, or the summit to have the opportunity to speak to First Nations people. I wanted to respond to that comment. That is my right as a Canadian citizen and as a First Nations citizen.
As well, I do not disagree. We are all here to improve the water quality on reserves. We are all here to work towards the same end. I am sure we can agree on that. I respect the fact that you have laid out your concerns. I respect that. I will take a look at your concerns, as will other people around the table. However, what I want to hear are solutions, and I have not heard one. All I heard is, "Let us redesign the consultation process'' and for Canada to do this and do that. While we do that, First Nations people still will not have access to clean and safe drinking water.
As my final point, I take exception to the fact that you say, on one hand, that this is flawed, when the fact of the matter is, if this is passed, First Nations people will jointly draft and develop the regulations that they, the First Nations people and communities, feel need to be developed. That may take, on the one hand, provincial regulations, or they may develop their own that will highlight their own traditions, customs, et cetera. Please tell me what is wrong with that. I have to hear solutions. What are the solutions?
Mr. Evans: The solutions are many, and they need to be dealt with in a holistic manner. In this particular case, the existing protocols are working, but they should also have been developed with First Nations to meet our required needs. This did not occur, as they were developed and put in place without a proper consultation period and First Nation awareness. The fact is they are in place and there is an opportunity to work collaboratively with government on how they can be further drafted to meet our needs. It is already there.
We need to put the monies that would be spent on enabling legislation into consultation efforts with First Nations for better protocols and the required infrastructure demands for new and upgraded facilities, more water operators and more trainers. The expert water panel recommendation also supports this. Creating and enforcing a regulatory regime will take time, attention and money that might be better invested in systems, operators, management and governance. Appropriate resourcing is the key.
You heard from Regional Chief Toulouse yesterday and his explanation that we solved our water issue in the 1980s through existing contribution agreements and proper resourcing. Every region is different. I understand Ontario, through their technical services, is developing draft regulations that will meet their needs. We all should be provided the time, energy and resources to develop or modify existing protocols and regulations in our respective regions. That is one solution as to how we can provide communities with safe drinking water, working on protocols that are now in place.
Mr. Chamberlin: Clause 6(1) of Bill S-11 states:
Regulations made under this act prevail over any laws or by-laws made by first nation to the extent of any conflict or inconsistency between them, unless those regulations provide otherwise.
Under this provision, any regulations made under the act will trump any First Nations laws or bylaws. I think that answers part of what you brought into this dialogue, because that clearly states that this bill will trump whatever it is we may want to have put forward.
I have heard the phrase "source to tap'' countless times from colleagues at Indian and Northern Affairs Canada. It is an interesting phrase. It sounds good. Gosh, it even looks better in print. The fact remains that INAC has no jurisdiction when it comes to activities that go on in a watershed or ground water. That is totally under provincial purview. They can say it, but they cannot affect change. What we have now is a provincial government that is more interested in jobs and revenues, which we agree are important aspects of this country, but we must get back to the underlying title, and that is First Nations.
I know that we have three organizations in British Columbia. I invite INAC to come and meet with us, and I do not mean just for a couple of hours. Let us knock a few days together and get on with this. Then you can start to understand our concerns. We can express to you in a very succinct and clear way what it is we take issue with in Bill S- 11, and then we can start to talk about what a solution could look like. Then we need to find the resourcing to make that solution real. Then we will be living up to what is in the declaration. I hope that answers the questions you have put forward.
Senator Dallaire: I have a copy of this committees report entitled, Report on Safe Drinking Water for First Nations, dated May 2007. Have you seen this report?
Mr. Chamberlin: I have seen the expert panel's report.
Senator Dallaire: You have not seen the Senate report?
Mr. Chamberlin: No.
Senator Dallaire: It was published in May 2007. Since we will be talking about consultation, this committee received an answer from the minister in April of 2008. It took 11 months for the answer to make it from this room to a room somewhere else in this building and back.
In this exercise, the committee extensively argues that extensive consultation is to happen not only with First Nations but also with the provinces and territories that are involved.
In fact, the report states:
The Committee is left to wonder at the Department's intention to proceed with a legislative scheme that is not only incomplete, but that may also find little support among those who must apply, and comply with, the legislation.
In the report we recommend, looking at the Assembly of First Nations and the expert panel, that necessary funds for all identified resource needs of First Nation communities in relation to the delivery of safe drinking water should be dedicated by INAC and should be a precondition to legislation.
In 2007, the department also started a comprehensive engineering assessment that was supposed to provide a report in 2009. From that, the department was supposed to build its plan of investment into the infrastructure to support this. However, it did not just sit there; it concurrently created a safe water plan, which, interestingly enough, after significant investment, has been, by all accounts, doing a pretty good job.
In the minister's response to our report we find out that discussions began with regional First Nations chiefs and First Nations organizations on specific regional issues regarding the proposed legislation initiative, which had been raised in the engagement sessions and within the impact analysis and correspondence. This was said in September 2009.
It also says that on January 29 discussions with regional First Nation chiefs and First Nation organizations concluded in British Columbia.
The whole exercise began in 2007. It says here that it ended in January 2010. The minister acknowledges that it demands extensive consultation, and you told us that you had one day of consultation.
I have a military bent, so forgive me, but I would like to know the true nature of consultation. Has no one written to you, talked to you, sat down with you, debated with you, invited you or whatever, over this time frame, for more than one day of discussions with regard to bringing in a legislative regime to sort out the issue of safe water?
Mr. Chamberlin: You mentioned January 29 for them coming to British Columbia.
Senator Dallaire: That is when it ended.
Mr. Chamberlin: For 203 First Nations.
Senator Dallaire: They say they have been at it since 2007.
Mr. Chamberlin: I would like to see the record of the meetings, because I do not think there will be that many. "Consultation'' is not getting First Nations together in a room, handing out information and serving coffee. I have seen that from efforts of the federal government, be it DFO or INAC. It is not meaningful. It is one thing to sit down and have a conversation. It is another to roll up the sleeves and get on with developing, first, an agreement on what constitutes consultation. You would think the first step would be to agree on how to make this work. Then we can get on with what needs to be done in that framework. If we do not do that, we will wind up with the question you are asking now. If we do not have an agreed-upon framework for going into consultation, we will not be happy coming out.
Senator Dallaire: I want to be specific. We are talking about what has happened in real life. What specifically has happened between INAC and the B.C. and Manitoba organizations with regard to consultations over the last nearly four years? Do you have a record of this? Do you have a record of decisions? Do you have a series of exercises you did together? What do you have?
I am asking you, but I hope we will have the bureaucrats back, because I think they deserve a second round of discussions with us.
Mr. Chamberlin: I am hearing you propose that there has been adequate and thorough consultation for four years.
Senator Dallaire: No, I am asking for information.
Mr. Chamberlin: The Union of British Columbia Indian Chiefs in assembly passed a resolution clearly stating that what has happened up until today is inadequate. I represent almost half of the First Nations in British Columbia, I am here to speak to the mandate that I have been given. I can now take that hat off and speak to you as the chief of our tribe. We have had zero engagement.
You spoke of the precondition of getting us all on a level playing field with regard to drinking water. I applaud that. That makes absolute sense to me. However, I can tell you about our First Nations' experience. We are stuck on an interim solution. INAC has told me point blank that the only reason they had money was because of the economic stimulus package, and that money is gone now, sir. Now we are stuck with a plant that is not operating in the manner it is designed to, and they have told us that maybe in five years they will get around to getting a proper one.
These are the issues. It is not lack of regulation that is preventing clean drinking water from being available on reserves. It is the lack of infrastructure; it is the lack of adequate resourcing and training to develop the capacity to do these things. That is what needs to be done first. Let us get everyone equal, we will have a good view of the land, and then you can enact legislation that is consistent across the country and not based on different interpretations from one province to the other, creating a patchwork.
Senator Dallaire: Help me with this. We will get to resources if I am allowed a second question. We are still on consultation. You say it is inadequate. "Inadequate'' is not a very good technical term, particularly when you are working with bureaucrats who are bringing forward legislation because without it they will not be able to get finances. The term "inadequate'' is not good enough. You, however, have said that your tribe has not received any consultation.
Mr. Chamberlin: That is correct.
Senator Dallaire: Mr. Evans said in his statement that there was one day of consultation. I do not want to put words in your mouth, but I gather that the whole consultation exercise that we were told about that was fundamental to bringing in legislation agreed to by the minister may not have happened.
Mr. Evans: That is correct. As the provincial organization that represents the 64 First Nation communities in the province of Manitoba, we were the ones who facilitated the one-day engagement back in February of 2009. That is the only discussion of which we have a record, and it was stated for the record at the time that the leadership did not want it to be construed as consultation because it was not introduced in that way when we were asked to facilitate.
I cannot answer whether there were any engagement sessions in the communities; however, I can only assume there would not have been any, because the assembly passed a resolution that there was no support for this bill. That is my response to you.
Senator Dallaire: Thank you very much. I do not know if I will be allowed a second question.
The Chair: We are running tight for time, but I want to get through the subject. Can you give Senator Dallaire a response, or do you have the information as to how much consultation took place in British Columbia?
Mr. Chamberlin: I think we need to hear from INAC; we need to look at their record. What is being discussed in a regional information session is different than consultation. When they come in and have a regional conversation, it is not consultation, sir. We need to get beyond just the passing of information and have an honest and fulsome dialogue. The dialogue must include experts on all sides of the table. The dialogue must include First Nation traditional ecological knowledge and traditional use studies and perspectives. The dialogue must include what it means to us culturally, and what it is we want to see protected in relation to our views of water.
The Chair: Colleagues, I will extend this session for another 20 minutes. Senator Dallaire, I would like to put you on the list for a second round.
Senator Banks: I hope the matters that have been raised by Senator Brazeau, the Chair, Senator Dallaire and by our witnesses today will be followed up because we are at the present dealing with these people who have said, "We consulted with everyone'' while other people are saying, "They did not consult with us.'' We need to get some numbers and have a record. We need to get it from everyone, I suggest, and INAC is good, but also from the people would be good, as well.
Grand Chief and Chief Chamberlin: I am entirely in favour of a bill that will bring safe drinking water to First Nations people. The Senate has proposed several such bills in the past, all of which have been defeated for one reason or another, or have not proceeded in the other place. They did not specifically have to do with First Nations; they had to do with Canadians. There was no distinction in the previous legislation.
However, I am adamantly opposed to the present legislation. I will vote against it if it comes before us at third reading in its present form. Prior to that, I will try to amend it in a couple of ways. We will see how that goes.
You have both said this bill needs to be killed. I happen to agree that we have to go back with a clean sheet of paper and start over again.
Grand Chief Evans, you have said you think that legislation is not the way to go. I would like you to explain that to us, because I believe that legislation with teeth and enforceable regulations, once it comes out of the end of the pipe, however we get to the end of the pipe, is necessary in order to make this work and in order to do what needs to be done. What is your response to that idea?
Mr. Evans: My response is that this particular bill is not the answer at this time for our communities. First, their standards are not comparable to the rest of Canadians. Therefore, this bill becomes an issue of enforcement. We are not at that stage yet with our communities — it is not just possible.
In order for that to happen, we need to ensure that our communities are brought up to standard in all other areas. Dealing with water, you have to look at the infrastructure in the communities. We have to look at the communities in a holistic way.
Again, we cannot support any bill that will be introduced that will be an infringement on our rights, in breach of the Constitution and in breach of the UN declaration.
There needs to be a partnership and we need to work in collaboration. Right now, there are existing regional practices and we need to look at those practices and adopt the good practices that are out there. I do not think this particular bill will make life better for our First Nation people in their communities.
Mr. Chamberlin: The Union of British Columbia Indian Chiefs stands in support of legislation that will safeguard drinking water, but it has to be based on bringing everyone up to speed. It must have every bit of infrastructure dealt with and there must be adequate and fulsome resources to make it happen. Those must be in place as a precursor to anything.
I have been racking my brain trying to think and remember when we were invited to come speak to Bill S-11 in British Columbia, and I cannot think of one time. I recall Environment Canada coming out and I helped them design their consultation model on wastewater for the Pacific region. They came and spoke. They had one-day sessions in various places in British Columbia. It was one day with two representatives for each station that could attend, but that is the extent of consultation I can recall for you today.
I would be interested in seeing what it is that INAC has ticked off as consultation in British Columbia, because I cannot for the life of me recall any.
Senator Banks: As Senator Dallaire has said, this committee said that adequate funding should be a precondition to legislation, but that is not normally the way the government works. It is also not normally the case that legislation such as this that puts into place a regulatory regime has money attached to it. Financial stuff is done in budgets, not in bills. The fact that there is not any money in this bill is not a concern.
We asked the government officials who were here about the shortfall between the requirements of First Nations, saying you have to jump through these hoops or else there are penalties and the capacity of the First Nations to be able to jump through those hoops, given the money availability. We were assured by those government officials that: "We would not do that. Of course, we would not take action against someone deficient in meeting those regulations if they did not have the money.''
Are you given some comfort by those assurances?
Mr. Evans: I want to respond to the earlier question about legislation. It is important for this committee to know that we support legislation that benefits First Nations.
We are working with the Minister of Indian Affairs and his department on electoral reform. That is a form of consultation. It is coming from the First Nations. That is becoming a national initiative that started in Manitoba. Now it is national. We want legislation that will bring about the kind of changes we need.
We could use that model in this particular issue when it comes to safe drinking water. That is why we say, when you want to work with First Nations in partnership, yes, it can work. We can have legislation. Legislation would be good, as long as we are part of that and as long as we are part of developing it. I believe that is where we all need to go.
The Chair: Chief Chamberlin, I am sorry I did not call you "chief'' before. I did not realize that you were a chief. Please except my apology and continue. Do you have a short response?
Mr. Chamberlin: When you ask if I take comfort in the words of commitment from INAC for adequate resourcing, no, I do not. I say that given our nation's experience. We are firmly on the fence. We are halfway to predictable operations for safe drinking water and they have abandoned us. That is what I can tell you. That is our experience. I see that behaviour from Indian Affairs right now, today. I do not take comfort in their words. There is a difference between words and actual dollars and commitments. We need to move towards jointly developed legislation. By "jointly developed,'' I mean working with First Nations. We must have adequate resourcing so we can participate fully; have something that comes forward that fully respects title and rights that are defined in the Constitution. We must have a consultation model that is described within the Supreme Court of Canada and is consistent with the UN Declaration on the Rights of Indigenous Peoples. These are promises from Canada. We want to bring those words into action at a First Nation table across the country.
Senator Banks: In other words, you wish to pursue the preferred recommendation of the expert panel.
Mr. Chamberlin: Yes.
Senator Sibbeston: The question of water is a simple matter, but I find that I am a bit confused and uncertain as to whether this bill is good. I find it difficult to say anything that might contribute to the advancement of this issue.
The reality is that First Nations need good, clean water and sewage disposal; that is the issue. Will this bill provide what we want?
It seems to me that there is more of a discussion of Aboriginal rights and human rights and so forth than the question of dealing with how safe drinking water will be provided to First Nations.
From my experience in the Northwest Territories, providing fresh water is one of the biggest challenges and difficulties that we have had as a government despite being a land of ice and snow. In some parts, it is a trial and error process. We have had pipelines in one of the communities in the Arctic as a way of bringing fresh water to the community. In the first winter or two, it froze. That approach did not work. Now we are into big reservoirs in places like in Pangnirtung and so forth.
I do not know the southern situation and the related difficulties. However, in looking at the legislation, I have to agree with AFN and some of the chiefs who have appeared before us. If there were a bill that had the intent of providing fresh water for the First Nations of our country, and that there would be a process of consultation, it would be different.
The provision of water is a very technical matter; it is not a simple matter. There are different systems of purifying our water. It might be a little pump station on the banks of a river that pumps water in, chlorinates it and holds water and sewage systems in the ground. The matter of water is a technical matter.
If there were a bill that said water will be provided, there will be a system, a consultation and eventually a decision will be made with respect to provision of clean water and sewage, and something was said about the finances, then it would be fine. However, it seems to me that instead of water, we are into this whole discussion of rights, and that is where I am afraid things will become mired.
I agree with AFN and others. When you look at this legislation, it is a very paternalistic type of legislation, where the federal government will do everything for the First Nations. What is the role of First Nations on the reserves and in the communities? I do not see a role for them. There has to be provisions for consultation and so forth.
I am amazed that the federal government would think of putting something as important as a non-derogation clause in regulations. They have had it in legislation up front, basically saying that this act is not in any way to derogate from the Aboriginal rights of people. Here they are purporting to put it in regulations. Can you imagine INAC officials having their hands at that — how much it will be undermined?
I am coming to the conclusion that this bill has become complicated and mired down in a big discussion about rights. I am afraid that it will just not do the job. Aboriginal organizations and leaders will be upset across the country, and there will not be goodwill and cooperation between First Nations and the government.
I am not too enthusiastic or hopeful about this bill, unfortunately. It is a matter of water; namely, let us provide good, clean water to First Nations. Maybe the government got us into this business of rights by virtue of the way they have written this. Every First Nations person who has come before us has spoken about rights and not so much the issue of how we will provide water and how it can be done.
Can government not get it right?
Senator Banks: No.
Senator Sibbeston: Can Indian Affairs not get it right? This is the issue. It is frustrating.
The Chair: With all due respect, sir, do you have a question? I respect you have the right to state your position.
Senator Patterson: I will ask a question about consultation. The departmental officials informed us that INAC provided funding to 10 First Nations regional organizations to undertake a regional impact analysis of the regulatory regime based on the government's preferred legislative approach.
Thank you for your presentations tonight. Do your organizations get funding to do this work? Did you do the work? What were your findings?
Mr. Chamberlin: I recall there was an impact analysis in British Columbia, but that is not consultation. Having a look at the various structures and so forth on the reserves is not consultation; it is an impact analysis. It is just not.
I think Senator Sibbeston did have a question; it is just that we all missed it. Senator Sibbeston asked why it is about rights and titles rather than drinking water. I think the clear question is that this legislation sets up a mechanism to infringe on rights in a way that defies what is in the Constitution. That is where this argument must be spoken of in relationship to the legislation.
The focus on drinking water is captured when we talk about the need to have the fulsome resourcing to bring the infrastructure up to speed for everyone. That is where we then come back to the focus of on-the-ground needs.
Regarding the impact analysis, that is one piece. We are at odds with one another with the department in that we did not sit down and agree as to in what kind of framework we will conduct the consultations. If we had sat down and designed that framework before we started to have discussions, we would know where we are in the process.
However, if we just sit down, do an impact analysis, have a coffee and maybe a sandwich, and the department walks away and say, "We have done that 10 times. That is consultation,'' they can have the authority to move forward in their world. However, we are here to say that you must develop this with us. That way we can know where we are at any given time in the process. I think that is the most strategic use of scarce resources.
Why not be strategic with it and go in with predictability rather than looking to do just enough and then have all this tension and conflict later? The foundation for goodwill and cooperation is founded on adequate and fulsome consultation.
Mr. Evans: The bill is a delegation of powers to the provinces, and perhaps some other third party, that would impose and enforce laws on our communities. That is an infringement of our rights.
The reality is that Bill S-11 will not address the issue of safe drinking water in many of the communities. The bill will not become legislation, become law. That is an issue and a concern, obviously, for many people.
We also have a shortage of homes across the country. Will someone be prepared to bring a bill that will deal with that issue as well? That gives you a comparison of what this bill would do and what another bill dealing with the shortage of homes would do. It does not really deal with the issue itself. It will not provide what is being proposed here.
Senator Patterson: Indian and Northern Affairs Canada — and I know you do not trust them; you have made that very clear — informed us that they will ensure that before a water system is funded in a First Nations community, they want to be satisfied that the First Nations community is in a position to meet the standards. They will roll out the proposed regulatory regime in a phased approach. They will provide a fully costed multi-year regulatory and compliance plan once the standards have been set up.
You made it clear that you want the bill trashed as far as B.C. and Manitoba are concerned. We had an indication that New Brunswick had recently moved a resolution quite the opposite of yours.
If there are First Nations communities in the country that are willing to take a leap of faith and trust the government, would you be opposed to having the bill applied to regions that want to hold their noses and work with the federal government.
I believe that legislation can be a tool for guaranteeing funding, which I fully understand is a problem. We have had an indication that there are some regions that are willing to move forward within this regime.
Mr. Chamberlin: What you describe is a good example of the diversity of First Nations in Canada. In that description of diversity, it also comments on the different stages First Nations will be at in terms of capacity and infrastructure.
I am not about to comment on another region's aspirations; I am here to speak for British Columbia and within the 203 First Nations of British Columbia, there is a huge disparity in terms of water. We need to have a stronger look at this in B.C. and we need to have this constructed in a way that involves a fulsome embracing of Aboriginal title and rights.
Senator Raine: Thank you. This discussion has been very interesting.
I know that when people get together and are trying to deal with a complex topic, especially one that covers such a broad area, including rights and titles, the need for safe drinking water, and the diverse situations across Canada from different regions and different capacities, sometimes it actually helps to start with a piece of paper that you can look at, pick apart and put back together so that it works.
It might be wise for all the different groups to take this bill in its present form, take a good hard look at it with your legal counsel and technical experts, and see if can be made to work. It is meant to be a bill that is a framework, where, right down to the individual First Nation, it can be adopted by regulation. It is not meant to be a one-size-fits-all type of legislation. There are some very good elements in this bill, and I can see that if there is goodwill on both sides, there can be the opportunity to add clauses to protect your rights and title and to make it work so we can get on with the job.
Is there any interest at all in taking this bill and trying to make it work?
Mr. Evans: Perhaps I will address my response to both Senator Raine and Senator Patterson on whether we would have any problem with another region moving forward, free to pass the bill, and then that is okay.
We are saying that we have not been consulted. The other regions have not been consulted, and for sure Manitoba. Whether in the Senate or the House of Commons, however the process works, for government to pass legislation without the consultation of all the stakeholders, especially ourselves, would go against our constitutional rights. Our position in Manitoba is that this bill is in contravention of our rights.
If you want to go ahead and move forward on legislation, I think you should seriously consider revisiting how we can actually move together on legislation. I agree with legislation, but it must be done in partnership.
Senator Raine: I am worried because I do not want everyone to go back and start over in designing the consultative process, although that would probably be a useful exercise for many other reasons. Water is a critical issue right now, and it would be nice to get on with getting the infrastructure in place and getting the job done.
Mr. Evans: I think the government is in a position to be able to do that without the legislation, without this bill. However, in order to do it right, we need to go back and start over and do it together.
Mr. Chamberlin: Thank you for your questions. Today there was a teleconference with INAC. They said they are willing to listen to comments, but there is no description as to how far they will take those comments in terms of altering the bill. This is built on a poor track record from the department, so we do not take comfort from their remarks.
When you talk about perhaps having a legal comment, our legal counsel has given us comment, after fulsome analysis, is to get rid of it and start again, to keep the "Dear Sir/Madam'' and "Yours truly'' and replace everything in between; that is how flawed this bill is.
I agree with my Grand Chief here that the critical issue is the resourcing. We can accomplish that by working on the infrastructure and capacity we need. The legislation can be developed properly. In the meantime, the government can make good on making water systems safe and getting on with providing safe and clean drinking water for First Nations.
Senator Brazeau: Chief Evans, you mentioned earlier that the standards in this bill are not the same as others across Canada. For clarification, and to put it on the record, I am not quite sure why you said that, given the fact that the regulations are not even developed yet, regulations that would allow First Nations to develop those standards themselves.
You also mentioned that this piece of legislation would be a breach of First Nations rights. You do not have to answer this question now, maybe you can write to the clerk, but I would like to know exactly how affording clean and safe drinking water to First Nations people across Canada, like every other Canadian citizen in this country, would be breaching First Nations rights.
My main question is the following: You both mentioned there was a lack of consultation. Perhaps you are right; I do not know. I hope that you will enlighten me.
Having said that, could you tell us exactly how much money you received from INAC for that one-day consultation? Could you tell us how much money you received during the last four years and how money each community that you represent in your respective provinces received, including the regional impact assessments? If you can forward that information to the clerk or if you have the answer now, that would be great.
Mr. Evans: For sure we will do that. I think you misunderstood the question when I talked about standards. In the Island Lake region when it comes to safe drinking water, the standards are not the same as the in the city of Winnipeg. That is what I am saying. As far as the information, we will forward our response to the clerk.
The Chair: Would you do the same, Chief Chamberlin, if you are so disposed?
Mr. Chamberlin: Yes. I want to answer the question briefly. Providing safe water is fully supported by the Union of British Columbia Indian Chiefs. We want that. We need that for our people. This bill does not do that. This bill unloads the liability onto councils that do not have the adequate resources to provide water. That is what we are getting at here. That is what we need to do.
I think you are erroneous when you talk about breaching First Nations rights with regard to the provision of water.
Mr. Evans: I want to pose this question to this committee. Why was Bill S-11 introduced in the Senate and not in the House of Commons? If INAC says there will be investments tied to the bill, then should it not have been first introduced in the House of Commons, as is the custom for most money bills?
The Chair: We will get back to you.
Senator Brazeau: I will respond to that question, given I am the sponsor of this bill.
It is the privilege of both the House of Commons and the Senate to introduce bills. This bill was introduced in this chamber because other bills are in the house, and it is the privilege of both houses to introduce bills as they please.
We are dealing with a hypothetical, but here is the $2.3 billion question. If tomorrow miraculously Indian and Northern Affairs Canada would say, "If this bill is passed, you will have the guarantee and the necessary resources for the infrastructure needed to deliver clean and safe drinking water on every First Nations community across Canada,'' would you support it?
Mr. Evans: A hypothetical question deserves a hypothetical response.
Mr. Chamberlin: The Union of British Columbia Indian Chiefs has a resolution directing us as the executive to inform the government that this bill needs to be scrapped. You are taking a piece of it and not looking at the whole parts we have described here today. When there is a clause that contemplates derogating Aboriginal title and rights, then it is flawed, period. That has nothing to do with drinking water; it has to do with the legislation. That needs to be addressed.
I am here to say that I have been directed by the chiefs and assembly to say this must stop. Bill S-11 needs to be recreated with fulsome consultation, taking in title and rights perspectives and inform it all the way through. Let us get on with it.
I know we are getting close to the end of our time. I want to thank everyone here today. I really appreciate your questions, and it is only through meaningful dialogue like this that we can move forward.
Senator Dallaire: In 2006, we introduced a Protocol for Safe Drinking Water in First Nation Communities, and the protocol included clear and measurable standards for design, construction, maintenance, operation and monitoring of drinking water systems. The protocol requires annual inspections by a qualified person. Then Indian and Northern Affairs Canada said they would commence a detailed engineering assessment, which would involve on-site inspections of First Nation community water systems and examine capital operations, maintenance and human resource needs. The minister made that statement in April 2008. The minister also said that the engineering assessment would be completed by the fall of 2009 with an investment plan subsequently developed to coincide with the proposed renewal of the authorities of Indian and Northern Affairs Canada's capital facilities.
Have you received any feedback from INAC on the infrastructure assessments or the potential capital program required to bring it all up to whatever is needed to be functional? Have either of you seen anything of that nature?
Mr. Evans: No, we have not seen anything like that and I thank you for your question.
With regard to Senator Brazeau's question, I want to finish it. The issues we bring here are not hypothetical; they are real. That is our response to that question.
No, we have not seen any document because, as I said, there was no consultation, there was nothing. Therefore, we could not produce copies of anything.
Senator Dallaire: We have legislation before us. We do not have the plan or the results of the assessment, but we will still bring in legislation. The 2006 implementation plan has been functioning well because out of the $2.3 million, they have burned up $1.7 million and people are saying it is going well. No one has scrapped that plan; it is going well. In the plan, it says it is supposed to have all these great references of measurable standards of design, construction and operation. What do you need more than that?
My question is the following: The AFN
. . . advocates the application of a federal regime as an interim measure for the application of national standards for safe drinking water on-reserve, until such time as First Nations community governments are ready to exercise their own jurisdiction over water management.
They said that maybe some interim tool might be useful. Obviously, they have moved away from that position and now want a permanent tool. Is there some reason why they do not believe that First Nation communities can exercise their own jurisdiction over water management?
Mr. Evans: There is probably a reason they believe we cannot because there is a 2 per cent cap on pretty much everything, whether it is education or training, to train our people so we can build the capacity needed to manage and govern our communities.
I go back to the holistic approach. If you put systems in place and modernize your infrastructure, you have to bring in the capacity to do so and you have to educate and train your people. We are capped right now where we are. They know that, and that is why they believe that. We will believe with them as long as they keep us suppressed in that way.
Mr. Chamberlin: Your question about the investment plan from INAC and the dollars, I can only draw your attention to the Kwicksutaineuk-ah-kwaw-ah-mish First Nation; they brought us so far and left us. That is what I know about that investment plan. That is the behaviour we have to report today.
I want to find out about the dollars INAC said they spent in British Columbia outside of that assessment. I know the Union of British Columbia Indian Chiefs did not get a dollar, and we represent one-half of the tribes. You would think we would be a reasonable organization to approach to help facilitate the dialogue.
The Chair: I thank both of you. There is no question that you are passionate about the issue, and the senators have passion as well. This is good because the dialogue that taking place may benefit everyone. We all have something to learn, and we all have something to contribute.
Grand Chief Evans, you look after my province, and Chief Chamberlin, you look after where I live now.
We have with us the second panel of witnesses from the Institute on Governance. I welcome John Graham, Senior Associate; and Jane Fulford, Vice-President, Aboriginal Governance. Please proceed with your presentation.
Jane Fulford, Vice-President, Aboriginal Governance, Institute on Governance: Good evening. I thank the committee for the invitation to appear this evening. We appreciate very much this opportunity to share some of our research work with you. We will try to be brief, although it is a little difficult for researchers to be brief, so that there will be plenty of time to address questions.
I have a few quick comments on the Institute on Governance to give a bit of context to some of the work we have done. We are an independent, not-for-profit public interest institution. Over the past 20 years, we have advanced better understanding and practices of good governance, and we have undertaken well over 350 Aboriginal governance projects.
We are here today to share with you the findings from the work we did in 2009 when we were contracted by INAC to help to facilitate 13 engagement sessions on the development of a proposed federal legislative framework for drinking water and waste water in First Nations communities.
John Graham, a Senior Associate with the Institute on Governance, led this initiative and participated in one-half of the sessions. He will share with you the summary findings of the information gathered during these sessions and comment on the significance of this and other work for the way forward.
[Translation]
John Graham, Senior Associate, Institute on Governance: Mr. Chair, I would like to thank you for the opportunity to address such an interesting and controversial issue. My presentation will be in English, but feel free to ask questions in French.
[English]
We have been into the issue of safe drinking water on First Nations for well over 10 years. Most of our clients have been federal government departments, such as INAC, Health Canada, Public Works and Government Services Canada and Environment Canada at times. We have also worked in a variety of First Nations as well. We did some quite interesting work for a group of First Nations, the United Anishinaabeg Council, who were in the middle of self- government negotiations a number of years ago. We helped them to design a regulatory system for water. We have done work for the Mohawks of Akwesasne.
A few of our publications will give you a sense of where we are coming from in terms of the way forward. We did a policy brief in November 2001 in which we were critical of self-government agreements. We felt that they were not dealing well with the whole issue of potable water. One fundamental governance principle is that the operating agency or government should not be the regulator at the same time. Many of these self-government agreements inadvertently put both sets of responsibilities in a single government. Quite clearly, that is bad governance; a government cannot regulate itself.
That was the first salvo that we issued in November 2001. Then we turned our attention more to the full range of First Nations and, in January 2003, actually recommended a safe water act that the federal government should introduce, incorporating provincial regulations, as probably the best way to go forward. We did this, though, saying clearly that it should be done in partnership with First Nations.
In the next publication, Building Governance Capacity: the Case of Potable Water in First Nation Communities, we talked about the difficulties of trying to do this, all of the difficult issues, and made a rather naive prediction that it would take 10 years from start to finish. That was clearly being optimistic, given the last four or five years of this file. Then, amongst other things, we facilitated these 13 engagement sessions that were referred to in the last presentations and then summarized 10 First Nation regional analyses.
Key themes emerged and you heard them pretty well from your two earlier witnesses. First, there was a strong theme of recognizing the sacred place of water in First Nation cultures and world views. That theme came through in almost every session, and it was significant in all of the regional analyses.
Another theme, and you heard it loud and clear, was that the engagement process was seriously flawed: it had a predetermined outcome, there was not enough time, there was the possibility of impacts on rights, the scope was too narrow, the government did not include source water protection, and it was not community focused. In other words, just as you heard, there were complaints that a regional engagement process did not get down into the communities. There was general dissatisfaction with the status quo. No one was convinced that the status quo was a good situation. You heard both witnesses say that the situation indeed can be dire.
I remind senators that in the early 1980s in Northern Quebec, eight Cree children died from gastroenteritis, likely from a water-borne disease. This is a health and safety issue. It is not just theoretical. The mortality rate was greater than Walkerton, where six people died.
In some of these sessions, not all, there was some acceptance of the need for some type of regionally based regulatory system, but then there were many conditions, which the previous witnesses articulated. These conditions included a need to infuse any system with First Nation values and world views. The current system had to be brought up to standards. There was a need for funding for capacity building and sufficient O&M funding to be provided. There needed to be source water protection. The government should seek support at the community level. There was wariness of provincial involvement and I think some confusion about the fact that incorporation of provincial standards somehow meant provincial government involvement. There was a lot of confusion on that point. Of course, that does not necessarily follow: Just because you incorporate provincial standards and regulations does not necessarily mean that you have provincial officials as regulators, it is still a federal law. However, there was confusion around that point. Then there were concerns about the liability of chief and council. Again, the previous witnesses expanded on that particular argument. Finally, there was a clear message that people were interested in a partnership with the federal government.
What are our views on going forward? My own view is that a regionally based legislative regulatory system is still the way to go. The current system, based on the funding agreement, is badly flawed. There should be no question that we already have a regulatory system in place and that this is not a new instrument. We have a lousy regulatory system in place, which loads the regulatory system onto the funding arrangement in a way that makes a major impediment in terms of the relationship. It takes the 30-page protocol, and puts it as a condition into the funding arrangement. The funding arrangement is premised on meeting the protocol.
The problem is that there are few sanctions if the protocol is not met. You cannot really withdraw the money to deal with the water system. That is not an option. There is not much else you can really do.
It is not a particularly good system, and it is very one-sided. This is a federal system. These are federal officials doing the testing. From a First Nation perspective, this is a pretty lousy system, I would think. There is an opportunity make this much better. There is an opportunity for getting a fair amount of First Nation empowerment, if we do this right.
If we do not solve these regulatory gaps, then I think this Indian Act potentially captures us, from which there is no escape except to move the federal lands into section 92 lands. These regulatory gaps are major inhibitors in terms of thinking about self-government. Finally, the jointly built systems can improve and increase First Nation empowerment.
The argument you are having about consultation, to me, is an argument that knows no resolution. Bradford Morse made the point that, from a First Nation perspective, there are really only two satisfactory consultations. One is where you actually have an agreement, or one maybe is where you have an agreement that people can opt in. Otherwise, any consultation exercise short of that is not satisfactory.
I would not waste my time trying to figure out how much money was spent and who spoke to whom. The thing is, from their perspective, it is not satisfactory because there was not some sort of consensus or there is not some way of opting into something so they have a choice.
From my perspective, the bill is meaningless without the regulations. It is an absolutely empty framework until you do something about the regulations.
Clearly the regulations should be developed jointly, based on formal agreements between the federal government and regional First Nations bodies. There would be a good public policy reason for doing this, not necessarily for rights, reason or whatever. The reason is that regulation is an inherently coercive instrument of governance, and it does not make any sense to have a regulatory system in which the people who are regulated do not see it as legitimate. It makes no good public policy sense to do that.
The only way to proceed, really, is to have an agreement around the regulations, and that is the guts of this kind of system. Without the regulations, the act is meaningless.
In order to improve the chances of reaching agreement, the federal government has to respond to First Nation concerns, the ones that came up in the sessions, and be open and honest about how they will do this. The federal government must first look for ways to respect First Nation values and world views. There could be symbolic statements about this, but there also could be enforcement mechanisms, even maybe different standards, that reflect First Nations concerns and world views. There is a possibility to do that in the regulations, and the government should be open to doing so.
Second, they should consider a variety of enforcement options such as a First Nation enforcement organization, or it could be federal, provincial, or a hybrid organization. The federal government should be open to a number of these enforcement options.
Then there is this difficult question about the liability of chief and council. Imagine you are a chief and you are subjected to this bill. The bill essentially will allow regulations to be developed, and the penalties for water are pretty severe. Fines in Ontario, for example, are in the millions of dollars. People can be thrown in jail for six months. Now you are telling a chief that this should be a good deal for him, that it will provide him with safe water, and the chief is concerned that he could go to jail for six months. Why would he be enthusiastic?
I think the way to get around this problem is the establishment of regional utilities. The majority of First Nations are too small to operate their own plants. They need to contract them out.
We did a study for the Ontario region in Indian Affairs. We looked at all the operators for water plants and for waste water. We did a projection assuming certain attrition rates and concluded that the very best the Ontario region could attain would be to have about 50 per cent of their water treatment operators certified.
You have to assume an attrition rate of 10 per cent to 15 per cent. You have only one certified operator per First Nation due to the smallness of scale, and there are strict standards to meet to become certified as a water operator. You must have 12 months' experience and a grade 12 education for category 1 plants. For category 2, 3 and 4 plants, the qualifications become more and more strict, and there are category 2 and 3 plants in Ontario.
When a First Nation suddenly loses their water operator, they are in big trouble, especially from a regulatory point of view, because they have no operator and that is the basis of any kind of multi-barrier approach.
We have to solve this problem. The current system is not workable from a regulatory point of view. The only way to make it workable is to develop regional utilities. In Ontario, the Ontario Clean Water Agency takes the operator responsibilities and all the liability from small municipalities. That is exactly what we have to do. We have to take the liability away from chief and council and put it into some sort of regional operating authority that actually operates the plant on a contractual basis. That is a big problem.
Another big problem is O&M. In the non-Aboriginal world, O&M essentially comes from property taxes. In Ontario, the regulatory system demands a revenue and expenditure sheet for all water plants. They want to see revenue, expenditures, and a viable plan because if it is not viable, the plant will not be maintained as per regulations.
In the First Nations world, 80 per cent of the operating funds come from INAC. From a chief's point of view, being thrown into this regulatory system and having 80 per cent of your funds being arbitrarily decided upon by the federal government is not exactly a winning formula. If I were a chief, I would be asking where is the guarantee that I will have the funds to y meet the regulations.
We need to think about this very difficult problem. We have not done the fiscal transfer stuff very well. Other countries — Australia, Austria, Germany and India — have done much more imaginative things with regard to transfers between various levels of government. We in Canada have not done very much on that, and this situation presents us with an opportunity.
From the O&M point of view, for this bill we need a neutral third party to advise on what is appropriate O&M. Why would a First Nation sign on to this if it is so arbitrary that the federal government is making these decisions? The federal government will likely never give its expenditure power to a third party, but an expert commission on fiscal transfers such as they have in Australia would be an important step forward and would provide some comfort to the First Nation. If the expert commission recommended a certain amount for O&M and the government gave a lesser amount, the First Nation would not be able to meet its obligations, and would have a defence. The O&M question needs to be looked at carefully.
There is also the question of source water protection, which came up repeatedly. In Ontario, there is a source water protection regime that involves First Nations, so it is possible. The federal government should be saying that it is willing to look at source water if the province is willing to do so. It does not make any sense if the province is not willing to do that because section 92 lands are not federal lands.
In order to reach some regional agreements there must be some process innovations. The federal government and First Nations have been involved in negotiations for self-government for a long time. We know a lot about what makes good negotiation processes work. A few requirements for that are a neutral chair, lots of community sessions, educational seminars, agreed upon timelines and early communication. Many things need to be done well to ensure a regional agreement.
I want to spend a minute talking about a related initiative in British Columbia. Senator St. Germain, this should warm your heart. It has to do with a B.C. health transfer. If you think about it, a health transfer should be a fairly significant Aboriginal right, or a treaty right of some sort or another. Most First Nations would claim health is in that domain. In terms of this agreement, they have managed to deal with the issue by setting it aside, and they could do that because they have negotiated an agreement. When that happens, practicalities trump ideology and you agree that this is a practical solution for moving forward. Both parties recognize that it has nothing to do with Aboriginal rights but is just moving forward on a practical basis.
Health Canada has signed a Basis for a Framework Agreement on Health Governance that involves the three major B.C. groups, including the Union of British Columbia Indian Chiefs. This calls for a First Nations health authority to work within the provincial legal framework for health in British Columbia. It transfers to the health authority Health Canada's regional office staff and budget. There are five regional health authorities in British Columbia and this sixth authority would encompass the entire province.
There is implementation funding of some $17 million and a 10-year funding agreement. The kicker is possible evolution of the First Nations Health Authority roles. For example, the First Nations Health Authority will work to expand its role in public health, including areas such as water and waste water management.
This is an interesting development, because in British Columbia we have the possibility of a First Nation health authority becoming the regulatory agent for First Nations. It is province-wide, so you have aggregation. It is being set up such that it will be free from political management. It will be run by professional people. If Bill S-11 were involved, you would have the makings of quite an interesting development in British Columbia.
You can see how much better this would be than the current system. It would not be federal regulators tramping through First Nations country; it would be a health authority run by First Nations themselves. However, it is within the provincial system. That is not to say there would have to be the same provincial regulations, but it would be within the provincial system with all the available provincial resources.
The other nice thing about this example is that it immediately provides capacity, because you the environmental health officers from Health Canada transferring into this First Nations health authority and you already have capacity to do the regulation. This is an interesting development and one the committee may want to explore further.
Finally, there are the implications for Bill S-11. Maybe there could be some preamble to at least some symbolic recognition and respect for the sacred place of water in First Nations world views. It would be useful to have a clarification that no First Nation will be subject to any regulatory system unless it meets the standards first. Maybe the minister should do that, maybe it has to be a statement, maybe it cannot be in the bill, but it seems to be self-evident that it is senseless to have a regulatory system where a one third of the people do not meet the standards.
I have already mentioned the establishment of a neutral third party to advise on fair O&M. Maybe there could be a ministerial statement on process for developing regulations that they will do this in partnership and then some source water protection agreements if provinces are willing.
Senator Banks: You said that much of your work has been done for various departments of the government.
Mr. Graham: Yes, on this issue.
Senator Banks: Are you planning on retiring? You have just made what might be a career-ending presentation.
Mr. Graham: From what perspective? I find that on much of what we do we come up the middle. We are neither liked by the federal government especially, nor necessarily by the Aboriginal groups. I think that is one of the advantages of having an independent think tank like ours.
Senator Banks: In respect of the conversation you heard earlier, would you describe to us the process of engagement sessions? What happens at an engagement session, of which you said there were 13?
Mr. Graham: There were 13 daylong sessions. In essence, the government put out a kind of a discussion paper. You have probably seen it. It was approximately 20 pages. It discussed the regulatory system and summarized the various studies, including the Senate study. It posed three sets of questions. It indicated the government's preference, which was for legislation that would incorporate provincial regulations. Then it posed some questions. Those questions essentially formed the basis of the one-day sessions.
The sessions were designed such that there were two people from each First Nation invited, including a political person and a technical person. People were seated at round tables and the idea was that for each of these questions there would be some discussion at the round tables. Some of the federal officials were involved in the round tables, such as the environmental health officers and the like. The dialogue was recorded. Some of the groups would then talk about what they came up with. Then we wrote up a summary. It lasted a day. In many cases, it did not turn out that way but that is how it was designed.
Senator Banks: Was there any other form of discussion or consultation of which you are aware?
Mr. Graham: I was involved in the regional analyses of the 10 regions. You had better ask INAC officials, but they were given $25,000 roughly, but the time period was pretty short, for sure. All 10 produced papers. They were quite good quality papers, in my view, for the most part. We summarized them. We then met with the authors of the papers to give them a chance to look at our summaries, because summaries are not neutral. Based on their comments, we submitted the final summary to Indian Affairs.
Senator Banks: Do you feel those summaries are incorporated into Bill S-11, meaning the general, overall thrust of those summaries?
Mr. Graham: The problem is that the bill is at such a high level, and it is a framework, that it is hard at that kind of high level to deal with some of these issues. The fundamental issues are not the standards, they are not the water- quality standards or whether operators should be certified, or whether you are going to certify plants or whether you are going to re-certify plants or whether you are going to inspect. Those are not the real issues. The technicians can deal with those issues and there will be a lot of variation from provincial standards just because of the smallness of scale and so on.
The real issues are governance and funding. A big governance issue is who will regulate. Then the other question is the funding issue. What happens when we do not meet the standards? You heard your previous witnesses list the problems. Then there is the O&M issue. These big issues need to be solved, and they need to be solved creatively because they are difficult.
I will pre-empt a question from you. In terms of what should be the sequence, in my view, if you wait for all of these systems to be brought up it will never happen. The money will never flow. Furthermore, as I said to you before, the system is not set up to develop 100 per cent operators running these plants. The best you will do is 50 per cent or 60 per cent. I believe the federal officials said they are at 60 per cent. I will bet they are plateauing now. You will never get the systems up to scale — never — so we have to do something different. We have to kick off something else.
If we do it right, in a partnership format, developing these regulations, we can develop some really interesting, novel solutions to get at some of these fundamental problems. The present system will not get at the problems and money will not solve it in any event.
Senator Banks: Putting aside the money, were the governance issues that were addressed in those 10 regional reports reflected in Bill S-11?
Mr. Graham: Bill S-11 essentially says we are open to any kind of governance. It can be delegated to any kind of governance body. In the engagement sessions some said yes, there should be a First Nation body set up. The B.C. example I gave you is exactly that. Some said yes, it should maybe be a federal body. No one really talked too much about provincial bodies doing that.
Bill S-11, because it is so open, allows for any kind of regulatory body to be set up. In that sense, the answer to that question would be yes. It just provides that.
Senator Banks: To your knowledge, in reading Bill S-11, which I presume you have, is there a clear provision that says someplace, because I cannot find it, that the regulations will be developed in consultation with anyone?
Mr. Graham: No, it does not.
Senator Banks: It just says the minister may prescribe?
Mr. Graham: Yes, absolutely. That is typical of federal bills. That is why I am saying that maybe the minister needs to make a statement, or someone needs to make a statement and say, listen; this is how we will proceed. We will do this in partnership. We are looking for agreements at the regional level for these regulations and that is the only way we can proceed. It is just good public policy to do this. It is not necessarily a rights issue. It is good public policy. You cannot have a regulatory regime that is not legitimate.
Senator Banks: We might also be able to put that into the bill, might we not?
Mr. Graham: I will leave it up to you people on that.
Ms. Fulford: I believe the legislation provides the opportunity for flexibility in the regulations and further in the implementation models, which will address the capacity development challenges and the O&M. The legislation provides for that consultation process or the joint working together, hand in hand, in the regulation development process.
Senator Dallaire: Am I to understand that because of your work from many years ago, you are the instigator of the need for legislation? You can say yes or no.
Mr. Graham: I do not know, frankly. One would like to think that people actually read our stuff and that we influence people, but I would think that other forces in play got this going.
Senator Dallaire: Not to be flippant, but we are going back to that one-day consultation. I do not want to stay stuck on that, but I am trying to look at the reality of that consultation process. You have, in British Columbia, 250-odd nations, and each are allowed two people to go to this meeting for one day. If they all went, you would have 500 people sitting for one day to go through all this stuff.
Mr. Graham: There were three sessions in British Columbia. There were 13 sessions all told. In B.C. there were three, and in Ontario there were two just because of the size and the number of First Nations.
Senator Dallaire: What would the size be at those sessions?
Mr. Graham: I think the total number of people at all 13 sessions is, 540, something along that line. It is in the report.
Senator Dallaire: They all had their chance to input in one day.
Mr. Graham: In Northwest Territories, there were only two First Nations, so we had five or six people.
Senator Dallaire: Regarding your recommendation of the ministerial statement on process for developing regulations, people in INAC have been working with First Nations for over 100 years. You would think they would be smart enough to show their hand before imposing a hammer on people with whom you are already in considerable friction. This is a marvellous instrument, holding the hand of the minister to the fire and have him explain what it will be.
I do not understand, apart from your saying that you need the legislation to create the regulations — I guess — because this does not provide any guarantee of funding in any way. You might have the legislation, but it gives no guarantee of funding, nor does it give any guarantee of O&M. In fact, just look at some of the treaty arrangements that have an implementation clause to them, and we have seen that implementation does not even exist on the map of much of the funding exercised by INAC.
Could we not achieve this without going through the trauma of a legislative process and create more frictions by it? Does the minister not already have enough authority to implement these regulations and to create these regulations to meet essentially the governance dimension and the hammer to implement them?
Mr. Graham: I suppose you had better ask the legal folks at Justice Canada. I would assume the answer would be no. They do not have the legal authority, and that is why we are bringing in Bill S-11. I frankly do not know of any acts, and I have been around this for 10 years. I do not know of any act that would allow for the comprehensive regulatory kind of regime you would need for water.
This water legislation and regulations are highly complicated. In Ontario, we are probably dealing with thousands of pages, when you add up all the regulations and acts. What is involved here are police-like powers. We have powers of search and seizure, powers of throwing people in jail, so you really need a firm legislative base if you want to do that. These are powers that are in extremis. They would be rarely used, if anything. The regulators do fine municipalities from time to time, but the fines tend to be relatively small.
Senator Dallaire: You are bringing in this extraordinary instrument to implement the regulatory means of guaranteeing safe water, yet the tools to make it work are not in the hands of the people who will be held accountable. You speak of a third party that might be able to be that intermediary.
Do we have such an example of a commission or a commissioner who would be able to have that much power to influence the government? If we are looking at the commissioners who already exist, the way they are being fired left, right and centre and how their recommendations are being overruled by cabinet, I would not put much faith in it.
Mr. Graham: I doubt if the federal government would ever agree to have some sort of arbitrator make a firm decision on finance, and say, "This First Nation will get this O&M.'' I do not think the federal government will ever agree to that. However, they might agree to have some sort of advisory commission, very much like the Australians do in their fiscal transfers between the states and the Commonwealth. In Canada, we have not been very imaginative on this issue. We are one of the oldest federations in the world, and maybe that is why. We are caught in the 19th century, where other later federations have managed to do much better at this fiscal transfer stuff than we.
Senator Dallaire: It is a shame none of that is in this.
Senator Brazeau: Welcome, Ms. Fulford and Mr. Graham.
What I heard is that the current regime is not working. At page 7 of your PowerPoint presentation, you list points as a way to move ahead. Would you agree that by the federal government and First Nations communities jointly developing the regulations, many of these points would be addressed?
You talked about the engagement summary, and if I heard you correctly, the Institute on Governance prepared these documents.
Mr. Graham: We prepared the summaries.
Senator Brazeau: I can see that the participants from British Columbia commented that the regulations could be tailor made to B.C. communities. Some provinces noted it would be easier to use provincial regulations because they are already in place and most groups agreed in principle that a regulatory regime was the way to go. Some groups believed that provincial regulations could be used to meet the regulations and standards off reserve and most participants supported a regional approach. Manitoba groups said that provincial standards already exist and could be a starting point and they supported the concept of a regulatory regime. Those are the pros.
Yesterday, we heard from the regional chief from Ontario speaking who spoke on behalf of the Ontario chiefs. This evening, we heard from a representative speaking on behalf of the B.C. chiefs and also a representative speaking on behalf of the Manitoba chiefs. When I look at the pros in the engagement summary that you prepared, it seems to me that most of the participants in the engagement sessions essentially supported the process that is being suggested in Bill S-11.
I do not want you to be in conflict with the testimony that others provided, but can you tell me why there is such a disconnect between what you are saying and what we have heard from the chiefs?
Mr. Graham: You had to be there at some of the sessions. Some of them went much better than others. In Alberta, there was, in effect, no dialogue. There were simply chiefs standing up for the first morning; we never did get to the agenda; they made their case over and over again for a whole variety of reasons; and then they just closed it down at noon. That was the Alberta session.
At the one Ontario session I attended in Thunder Bay, they wanted to demonstrate the fact that this water is very sacred to us. They spent much of the first morning with a whole series of cultural manifestations of the importance of the sacred water. Again, we never really got to the agenda items and did not get into the dialogue. On the other hand, on the three occasions we were in British Columbia, the agenda was pretty well followed. We were able to get some interesting conversations going. Therefore, it was quite uneven, senator.
Again, I do not think asking whether the consultation was adequate is the right issue to discuss. The right issue is what we have to do to go forward. The only basis to go forward is some sort of partnership.
One may say, "Gosh, maybe we should have had a partnership from the beginning. Maybe we should have gone to Quebec and worked with them from the beginning, developed the act and the regulations and figured out that we needed something to get the acts and regulations together.'' Maybe in retrospect, that should have happened. However, for whatever reason it did not and I still think that, given all the capital and political effort that has gone into this, the best option is to move forward with this and go with the regions that want to move forward. If Manitoba does not want to do that, that is fine. If Alberta does not, that is fine. However, let us pick a region that does want to go forward, develop the regulations in partnership, come up with innovative solutions that are better than what we have now, and say to the rest, "We are willing to talk to you about something made in Manitoba. Are you willing to sit down with us?''
That is the best way to go forward, given the amount of energy and time spent. We need innovative solutions. The status quo is simply unacceptable. To suggest that the solution is to get everything up to speed before we even talk about regulations is a non-starter. You will never get there. It will take a century to see the safe drinking water act in place.
There should be no illusions to that effect. You will not get there if you say everything must be brought up to standards first, before we even talk about regulations. You will never get there.
Senator Brazeau: If this bill were passed by joint development of the regulations, do you believe that the points you enumerated on page 7 of your presentation could be addressed and rectified?
Mr. Graham: I think the federal government should be proactive on those points, saying, "We heard you, First Nations. You were very eloquent and we are willing to engage you on those points. We are willing to talk about O&M. We are willing to talk about the fact that when we bring in the regulations, not everyone will be up to scratch. How will we deal with that? We are willing to talk about how we will regulate this and what sorts of instruments we will have, and we are open to it; we are open to anything.''
Ms. Fulford: There was agreement to that regionally based approach. The challenge was with engagement versus consultation. The summary is even called a Summary of the Engagement Sessions, not the consultations. The information we heard from those sessions was very positive but the approach was not something for which there was agreement. It was not consultation; it was engagement.
Senator Dallaire: With the process you have been describing, do we have to go through the legislation to do that or can we move down that road and, once we have people on board, provide legislation that would meet a lot of what you have been describing?
Mr. Graham: That is an option. Maybe the minister is the best person to talk to that option and about whether that would be feasible.
One of the things that should be in my slide 3 would be that the government would also — going through this regulatory process in developing it — be open to changing the bill if needed; in the process of going through the regulations, the government would look at changes to the bill, as well.
Senator Dallaire: That is where I thought he had the authority.
Mr. Graham: The government could then say, "We are even willing to change the bill, but having the umbrella act certainly helps set a framework.'' Given the effort we have gone through and the political capital we have spent, I think the way forward is to pass the bill and take a region or two regions and work with them to see if they can come up with some regulations.
The Chair: Would a stated review period suffice?
Mr. Graham: Like a sunset clause of, say, five years?
The Chair: Yes, a review of it.
Mr. Graham: I do not have a lot of experience with sunset clauses. I am not sure whether they work well. I am not particularly expert on whether sunset clauses are good or bad, but if that will give comfort to people, I think it is worth discussing.
Senator Raine: Thank you. Being a novice in terms of water regulations, I am wondering if you could summarize or put to me why legislation is required to have an effective water and waste water protection regime.
Mr. Graham: You can throw people in jail. You can fine them fairly significant amounts of money. You can order them to spend money. You can do all kinds of police like things. This is a very coercive — in extremis — type of government legislation.
You need regulations. You cannot search a car or a water installation without having the legislative basis for saying, "Yes, I as an official have the legislative powers to be able to do these things.'' These are coercive powers. This is not giving out money to build water plants. You do not need legislation to do that. You need legislation to throw Senator Nancy Greene Raine in jail. That is where you need a legislative basis.
Senator Raine: Listening to this as a First Nations people, I may think "I do not want my friends to go to jail. We just want clean water.'' How does having a regulatory regime in place make it more likely that the proper resources will flow to build the infrastructure needed?
Mr. Graham: If you had a regulatory regime in place, it would be a positive factor for driving more federal investments. You will never get any federal official to say that, let alone anyone from the Department of Finance. It stands to reason that if you went through all trouble to develop regulations, which took you two years and occurred with great fanfare, and someone said to the minister that one-half of the First Nations do not meet the standards. What will the minister do? I think the ministers will tell his officials to get those people up to standard so they are within the regulatory regime. I think it will drive investment not inhibit it. No federal official will ever say that.
My experience having worked as a federal official is that this will drive federal investment, not inhibit it. You have gone to the trouble of saying this is a health and safety issue and everyone asks why these guys are not up to standards to do the regulatory regime that you want them to do. I think it will drive investments.
Senator Banks: Senator Raine has asked my question. What is the magic in this? We have to understand that this government and other governments before it, as far back as you want to go, have failed utterly in addressing this issue. We have not done it: The Liberals did not do it, the P.C.s did not do it, and the Conservatives have not either. We have failed.
Mr. Graham has said that we need something with some teeth in it.
The reason that Corn Flakes does not make us sick is that the president of Kellogg's knows he will go to jail if his food makes people sick. He does not do it because he is a good guy. I am exaggerating slightly for effect. The fact is that when people make stuff that we consume, there is a legal means of proceeding against them if they put stuff in a package or a bottle that makes us sick. They, therefore, take great care not to do that. I think that is what Mr. Graham is getting at.
You have said emphatically, over and over again, that, absent legislation with teeth, we will never ever get it done. I agree with that. I just question whether the legislation with teeth has to have all of those relatively draconian things in place, including the abrogation of, derogation from, rights — the right to impose management, the right to require First Nations to do things that they might not want to do —, which is what this does.
I agree we need legislation with teeth. We need enforcement legislation. I just do not think we need this kind of hammer in it and this kind of abrogation of rights. That is not a question.
The Chair: It is a comment, and a worthwhile one.
Senator Brazeau: I have a comment, for the record. I wholeheartedly agree with Senator Banks that successive governments have failed First Nations people on this issue. However, this government is trying to fix it.
The Chair: Mr. Graham, Ms. Fulford, thank you very much for your excellent participation here this evening. We thank you for coming and taking the time. It was very informative. I am glad you were part of our witness panel.
Mr. Graham: You can thank your excellent staff.
The Chair: They make me look good, and that is not easy.
Senator Patterson, I will deal with your issue at the steering committee.
The meeting is adjourned.
(The committee adjourned.)