Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 18 - Evidence - February 16, 2011
OTTAWA, Wednesday, February 16, 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 on the web. I am Senator Gerry St. Germain, from British Columbia, and I have the honour and privilege of chairing this 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 of and training for operators, lack of independent resources to fund system operation and maintenance properly, and lack of clarity with regard to roles and responsibilities. This evening we will continue our study of proposed 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 five witnesses from three organizations including The Canadian Bar Association, the Association of Iroquois and Allied Indians and the Kwilmu'kw Maw-Klusuaqn-Mi'kmaq Rights Initiative.
[Translation]
But before we hear from our witnesses, I would like to introduce the committee members here present this evening.
[English]
On my left is Senator Dyck, deputy chair of the committee, from Saskatchewan; Senator Sibbeston, previous chair and deputy chair of this committee from the Northwest Territories; Senator Pépin from Quebec; Senator Demers from Quebec; Senator Poirier from New Brunswick; Senator Stewart Olsen from New Brunswick; Senator Patterson from Nunavut; and last but not least, Senator Raine from British Columbia.
Members of the committee, please help me in welcoming our first witness, from the Canadian Bar Association, Christopher Devlin, Executive Member, National Aboriginal Law Section. Mr. Devlin, the clerk has spoken to you. We ask you to keep your presentation as concise and precise as possible so that adequate time is left for questions from senators. Please proceed.
Christopher Devlin, Executive Member, National Aboriginal Law Section, Canadian Bar Association: Thank you very much for inviting the Canadian Bar Association to present tonight. The Canadian Bar Association represents over 37,000 lawyers, law students, notaries and judicial officers across Canada. One of the central mandates of the CBA is law reform and improvement in the administration of justice. Tonight, I am here on behalf of the CBA and, in particular, the Aboriginal law section of the Canadian Bar Association.
Senator Sibbeston's comments before the meeting were well-founded; we have a brief one-page letter to the committee. I have had the opportunity to review the blues of the last four meetings, so I am aware of some of the discussions that have taken place to date.
The CBA's primary focus lies with clause 4(1)(r) of the proposed legislation. We do not have a position on the merits of the bill. We say in our letter that this issue of safe water on reserves and for First Nation communities needs to be addressed properly by the government.
Our chief concern is with one provision. It is set out for you in the letter, which I assume you all have because it is such a short document. We see a problem with clause 4(1)(r). I understand from testimony by government officials on the first day that the English version of this provision is not consistent with the French version and that the French version has limiting language.
A drafting error has been identified to the committee, so I will not belabour that point. The committee asked whether the drafters could fix it so that it is consistent with the French version. I believe the answer from the bureaucracy was yes. Our concern was deeper than that error because even if it is made consistent with the French version, it still raises the issue that it enables the Governor-in-Council to pass regulations that could abrogate or derogate from section 35 rights under the Constitution.
You have heard testimony on this issue. Normally one sees non-abrogation and non-derogation clauses. The intent of government appears to be that this clause is to allow such clauses to appear in the regulations that the Governor-in-Council can make under this bill. The regulations may be regionally specific or specific to a particular First Nation.
That may be the intent, but that is not necessarily how the language reads. The language in the English version allows for the abrogation and derogation of section 35 rights. We see this issue as disproportionate to the mischief that the bill is designed to address.
Our submission to the committee is that the provision may not be constitutional in any case. Derogating is diminishing but abrogating can be extinguishment. This bill is being enacted under Parliament's section 91(24) power in the Constitution; fair enough. However, that power is limited by section 35 of the Constitution. Therefore, the government, under its section 91(24) power, cannot abrogate the Aboriginal and treaty rights protected under section 35 of the Constitution.
We say that this bill, as drafted, should not be allowed to proceed. The drafting error has been revealed to the committee. What should be reflected in this provision if it remains is the intent to allow for the regulations to include non-derogation provisions on a region-specific or First-Nation-specific basis as the regulations are passed, and not have this open door to the abrogation of section 35 rights by way of regulation. That is our submission in a nutshell.
The Chair: Is there a possibility that section 35 of the Constitution, as a protection against possible abrogation and derogation of Aboriginal treaty rights, trumps this provision?
Mr. Devlin: Section 35 trumps all legislation. The point is that legislation should not be passed if it is of no effect. The fact that abrogating is in that clause, which means eliminating or extinguishing, makes the legislation nonsensical, which should be avoided. The legislation would be subject to the Sparrow justification test, as set down by the Supreme Court of Canada. The drafting should be fixed so that Parliament does not pass legislation that does not make sense. That situation should be avoided and can be rectified at the committee level.
The Chair: As you so astutely observed, the representative from the Department of Justice agreed that there was work to be done on that clause.
Senator Dyck: Thank you for your presentation. It is a little bit confusing. Clause 4(1)(r) of the bill says that regulations may abrogate or derogate from the Aboriginal and treaty rights. Yet, you are saying, if I heard correctly, that the government says its intent is to allow non-derogation clauses in the development of the regulations. Did I misunderstand what you said?
Mr. Devlin: No: My review of the testimony so far was that the intent of the government was that it would occur at the regulation level, not the legislation level.
Senator Dyck: By the way it is written in the bill, it sounds like that cannot happen, and that they can derogate or abrogate.
Mr. Devlin: That is exactly the problem we are addressing.
Senator Dyck: There are two conflicting messages. I thought one of the solutions might be to add a clause that the government in the development of regulations will include the standard non-derogation clause. However, will that clause not put it in conflict with the original bill?
Mr. Devlin: Yes: The issue is that if the intent of the clause is to enable the Governor-in-Council to pass regulations that have non-derogation clauses, then this language does not reflect that intent, in our view.
Senator Stewart Olsen: Mr. Devlin, I am confused. Without those clauses, how does the government ensure that matters of health and safety override everything else, including municipal rights and provincial rights?
If there was something really unsafe about the water and the government met with a wall of absolute noncompliance, what recourse would there be for the government? If this legislation is weakened or corrected, as you say, how then can we manage to override the objections and maintain the health and safety of that drinking water system? That is my conundrum.
Mr. Devlin: That is fair enough. Definitely, the objective of the act is health and safety, and that concern is paramount. I have two responses to that question. The first is, notwithstanding the utter importance of health and safety, that concern does not have the same constitutional imperative as Aboriginal and treaty rights under section 35.
That is the legislative framework that we live within in Canada. The framework has to be dealt with somehow. The constitutional ranking of Aboriginal and treaty rights has to be acknowledged properly within the legislative framework.
Second, for issues on reserve, Canada already has extensive section 91(24) powers on reserve through the Indian Act to affect use of land on reserve. The Indian Act imposes significant restrictions on the use of land on reserve if the minister does not agree with that use. That power is continued under this regime and is reinforced by bringing in provincial and local regulations. If the issue is an off-reserve issue, you would be dealing with either provincial land or private land. Again, even if there is an assertion of Aboriginal or treaty right, the government still has the ability to infringe justifiably, and that is set out in Sparrow and all the other cases that have been cited to you that allow the government, even after consultation, if it is deemed appropriate and justifiable, to proceed with a course of action.
The issue here is particularly with the word "abrogate," which can mean extinguishment. Our suggestion or submission to you is that Parliament cannot do that by regulation this way.
Senator Stewart Olsen: In other words, we would allow people to die protecting their constitutional rights rather than protecting their health and safety. That is a big worry to me.
Mr. Devlin: That is certainly not what we are saying to you.
Senator Stewart Olsen: I understand, but, if you think about it, then that is what the issue comes down to. It is a worry to me, and I would like to find some way around this issue.
Mr. Devlin: The scheme of the act as a whole could be effective in addressing the bulk of the concerns about access to safe drinking water, potable water, for First Nation communities. It does not strike me that dealing with this constitutional issue will result in the death of people.
Senator Stewart Olsen: No, but if we have dirty water and cannot fix it, we run into a wall. We do not have the power necessary to go in and fix that water under what you are saying. That is the constitutional right. I am not a fan of the Indian Act. I think that act is a worse constitutional infringement on people. However, cases of health and safety are paramount. If the health and safety of people on the reserve is threatened by bad water, there has to be a mechanism whereby that threat can be corrected, and the mechanism cannot be weakened. Help me on that issue.
Mr. Devlin: I understand what you are saying. At the risk of repeating myself, I understood the testimony by the person from the Department of Justice to be that this provision was intended to allow insertion of non-derogation clauses in the regulations passed by the Governor-in-Council.
The intent of this clause was never to abrogate or derogate from section 35 rights. That was never the intent. The intent was, in fact, the opposite. However, the way the clause has been drafted, and the drafting errors that have resulted, open the door to that abrogation and derogation.
We are saying, either the whole clause should be taken out or even the last phrase taken out from "including" onwards to make the clause consistent with the intent and to make it consistent with section 35 and the jurisprudence to date. That is all we are saying. The rest of the bill gives significant powers and significant mechanisms to deal with safe drinking water on reserves.
Senator Stewart Olsen: Thank you, Mr. Devlin.
The Chair: Has the Supreme Court not ruled that Aboriginal rights are not absolute in the case of conservation or public health issues?
Mr. Devlin: They are not absolute. There would have to be justifiable infringement. To the extent that the common law addresses overcoming the kinds of concerns that Senator Stewart Olsen expressed, that is already provided for in the common law, but there is an established test for that infringement.
This provision is a new creature that we have not seen before. We have seen only non-derogation clauses. We have never seen abrogation clauses before. We are raising this caution with you. We have the existing common law tests for how to infringe these rights, tests that have been approved by the courts.
We have in existing legislation, albeit several different varieties, non-derogation clauses. We have yet to see a positive abrogation or positive derogation clause. We suggest that, given the intent of drafters of the bill, this clause should not go forward as it is written because that is not a creature that is necessary to remedy the mischief sought in the bill.
Senator Sibbeston: Can Mr. Devlin comment on the clause with respect to land claim agreements? Land claim agreements made by Aboriginal people, agreed to by the federal government and set into legislation, are protected — they become section 35 constitutionally held rights, and so nothing can ever take away from those rights, and certainly never a regulation. Can you comment on that?
It is bad enough trying to take away Aboriginal rights from bands whose rights are not constitutionally protected, but those land claim agreements become section 35 constitutionally protected rights. It is completely unconstitutional to have a clause such as this one that purports to take away any of the rights of land claim groups, as it were.
Mr. Devlin: That takes me outside my official submissions, so I will take off my CBA hat to respond to that question.
I think that land claims are modern treaties. Modern treaties fall under section 35 the same way that historic treaties do. We recently received wisdom from the Supreme Court of Canada about the interpretation of modern treaties in the Little Salmon/Carmacks case.
Even with modern treaties and land claims, the courts have recognized that the Crown has the ability to infringe, as long as it can justify the infringements of those rights. Even if you have a modern land claims agreement, it still can be infringed by Crown activity, as long as the Crown justifies it.
The justification process, obviously, has first regard for the land claim document, and that sort of a thing. There is no absolute protection under section 35, and the courts have been clear about that.
Senator Sibbeston: I do not want to disagree with you, but land claim agreements are exactly that. They are agreements that are entered into between the federal government and Aboriginal groups. They are all made in the light of day, and passed into legislation.
Having made those agreements, I do not see how there can still be an opportunity for the federal government to take away from those rights once they have been set and become section 35 constitutionally held rights. I think those agreements have a higher level of protection and rights for Aboriginal people.
I do not think they can be infringed upon in any way, as you suggest, because infringement would revoke the agreement. If the federal government suddenly decides to pass a regulation that takes away from an Aboriginal-held right that is constitutionally protected, that would be a breach of the agreement. Nobody can unilaterally take away those rights; it takes both parties.
I think the land claim agreements are on a higher level; the agreements are better protected, they are stronger and I do not think any legislation can ever affect them or take away from any of the rights in these land claim agreements. That is what I am saying.
Mr. Devlin: I understand what you are saying. I wish I could agree with you. I would like it if that is how the world worked, but that has not been my experience. The courts are filled with cases of the government, from the First Nations perspective, not living up to their agreements and breaching them.
Senator Sibbeston: I do not agree with you, because what would be the purpose —
The Chair: Let us not be argumentative. He has his position and you have yours.
Senator Sibbeston: I will ask Senator Patterson this question because he knows the Nunavut land claims situation and the rights that Inuit people have as a result of that agreement. The agreement is constitutionally protected. A little regulation in some obscure act cannot take away those rights. It cannot.
That would be an infringement; that would be a breach of agreement by the federal government. These agreements are entered into, they are modern treaties, and the federal government cannot pass legislation and regulations afterwards that will breach that agreement, regardless.
I cannot see a situation where a land claim agreement can be derogated from, or any rights can be taken away. That is what I am saying. I cannot help but think that Senator Patterson must have that view too.
Senator Patterson: Yes.
The Chair: That is two to one; I will not referee this one. I will go to the next question, if I may.
Senator Dyck: I think everyone on the committee wants to ensure that all members of First Nations have access to safe drinking water. Setting regulations is part of the solution, but I do not think the regulations alone will give First Nations people safe drinking water.
What will give them safe drinking water are things that are listed under clause 3(1)(a) to 3(1)(h): regulations designed to train and certify operators; protecting the sources of drinking water and so on. However, the regulations themselves — and some of our witnesses have agreed — will not provide safe drinking water.
The issue of protecting the constitutional rights is important, because self-government and land claims obviously are important to First Nation organizations and to First Nation bands. The picture is still confusing, because inserting that clause 4(1)(r) the way it reads now — what the department has said — is not what the minister intends. Whatever we have in the final draft is something we must look at carefully.
Are you prepared to say what you think regarding paragraph 4(1)(r); should it be amended or withdrawn?
Mr. Devlin: In our letter, we say it should be withdrawn because we already have the common law test for infringing Aboriginal rights. If that test is necessary to address Senator Stewart Olsen's concerns, that test already exists.
Paragraph 4(1)(r) adds to this confusion of whether the federal government can abrogate and derogate by way of regulation. This issue is a whole new wild frontier we have not come to yet, and it is not necessary to deal with safe drinking water on reserves.
Therefore, we say the paragraph should be eliminated. If not eliminated, then certainly the words, "including the extent to which the regulations may abrogate or derogate from those Aboriginal treaty rights" could be deleted. Then we have only the regulations commenting on the relationship; whether they are non-derogation or derogation is left for another day. Hopefully the department's intent, which is that this paragraph will enable the Governor-in-Council to put in non-derogation clauses, will play out.
Senator Dyck: The committee members have a copy of a letter signed by Minister John Duncan that was sent to the Union of British Columbia Indian Chiefs. I will read you the relevant sentences with respect to section 35. The minister says to the B.C. chiefs:
You expressed concern that Bill S-11 will negatively impact Aboriginal and treaty rights. Section 35 of the Constitution Act, 1982 protects existing Aboriginal treaty rights from infringement unless that infringement is justified. Let me assure you that Bill S-11 is consistent with and subject to the Constitution.
This letter may relate to what the chair asked. Is the minister suggesting that the infringement is justified in this case, with respect to regulations in drinking water? Is that how you interpret those sentences?
Mr. Devlin: Sort of: I would say that the chair is correct that things like conservation and safety trump activity rights in specific circumstances. We have seen that in the courts from time to time, where a conservation issue or a public safety issue effectively has trumped the exercise of an Aboriginal or treaty right, but there are always fact-specific situations. This bill is framework legislation. It is a general piece of legislation, where the blanks will be filled in later by regulation. The concern is less about whether this legislation abrogates or derogates, and more about whether it sets up a problem down the road when the regulations are passed?
This bill is only a framework, and we want to ensure that the framework is lawful. I have raised an issue about whether the framework can empower the Governor-in-Council to abrogate. Our submission is, it cannot.
Let us ensure the framework is right for the regulations that flow later. Those regulations are the specific situations; it is not until specific regulations are passed that we will find out whether we have an infringement, and then whether that infringement is justified for a compelling public health and safety issue or water conservation — whatever the issue is.
The regulations are where we have that debate. We cannot have it here because we do not know the specifics here.
Senator Patterson: I think this discussion has been important because the question of Aboriginal rights and treaty rights has been brought repeatedly before our committee as being threatened by the bill.
We have had officials from the department with a different angle on this matter say, and I think the minister's letter also says — I am quoting from the minister's letter of February 9 that Senator Dyck referred to:
I would like to reiterate that officials will work closely with First Nations not only in creating appropriate regulations on a regional basis and in determining appropriate compliance and enforcement mechanisms but also in developing a scheduled rollout . . .
The department has said in various presentations that First Nations will be involved in developing the regulations according to their region, which would seem to me to be a way of getting away from the rights problem and focusing on the mechanisms for creating safe drinking water.
Would it be unusual or feasible for us to recommend that regulations be developed in consultation with the appropriate regional First Nation? It is not in the bill but we are told we will consult with, we will work closely with, or fully involve, First Nations. Would it be unusual to have that kind of duty to consult built into a bill? I think it may take us away from the rights problem. That is why I ask. Do you have an opinion on that suggestion?
Mr. Devlin: I am formulating one in my head. I did not understand initially that you were talking about including a duty to consult in the bill. I thought you were going to recommend, as part of the committee's report, that the government consult and engage the First Nations and their regions.
Obviously, consulting with the people who will be affected by the regulations is the way to go. I believe that consultation is the intent of the department. At least, that is what has been stated consistently to be the intent of the department.
Whether to build in a duty to consult provision in the framework of the bill, I suppose that would be a different kind of legislation than we have seen in the past. I am trying to think whether I have seen legislation that embodies a duty to consult, at least, as we understand it from the Supreme Court of Canada. That provision would be a step forward I think. Again, it depends on how the duty to consult is defined in the bill.
If I may exercise a word of caution, that could lead you down a completely new and different rabbit hole in terms of legislative drafting that you do not have before you now. It may be a worthwhile rabbit hole to go down, but it takes you on a completely different drafting exercise.
The Chair: I want to thank you and the bar association, Mr. Devlin, for coming this evening and presenting. Your presentation was clear. Everyone does not agree with you, but that is the beauty of this country. Hopefully, we will continue to have the right to agree or disagree. You have answered with clarity, and we appreciate that.
Our second panel comprises two groups. We welcome Randall Phillips, Grand Chief and Joshua Shoemaker, Policy Analyst, who join us from Association of Iroquois and Allied Indians.
The second group is the Kwilmu'kw Maw-Klusuaqn, Mi'kmaq Rights Initiative, represented by Twila Gaudet, Consultation Liaison Officer; and Laurie Suitor, Water and Wastewater Coordinator.
Witnesses, I do not know who wishes to proceed first. Have you decided amongst yourselves who will present first?
Randall Phillips, Grand Chief, Association of Iroquois and Allied Indians: Chair, I always say ladies first, but we have had no discussion as to who will go first.
The Chair: If that is all right with you, Ms. Gaudet and Ms. Suitor, you have the floor. If you were not here for the last witnesses, we ask you to keep your presentations to five to seven minutes to leave time for questions from the senators.
With that, you have the floor.
Twila Gaudet, Consultation Liaison Officer, Kwilmu'kw Maw-Klusuaqn-Mi'kmaq Rights Initiative: I have essentially a prepared presentation that I want to go through briefly with you.
Thank you for welcoming us here this evening and for allowing us to present our concerns to you with respect to this important issue.
While the Government of Canada and the Mi'kmaq of Nova Scotia share the goal of safe drinking water, it is evident we differ greatly on our perception of the path to reach that goal. Through the made-in-Nova Scotia process, the Mi'kmaq have a unique consultation process by which to address issues that may affect Mi'kmaq rights and title. This process is outlined in the Terms of Reference for a Mi'kmaq-Nova Scotia-Canada Consultation Process ratified by the three parties on August 31, 2010.
The process had undergone a three-year trial period prior to ratification, and following a collaborative revision process, the document was ratified by the 13 Nova Scotia Mi'kmaq chiefs representing the Assembly of Nova Scotia Mi'kmaq Chiefs, the Premier of Nova Scotia and the minister of Indian Affairs and Northern Development.
The expectation is that Canada will honour its commitment and its constitutional duty to consult with the Mi'kmaq of Nova Scotia on the issue of safe drinking water, an issue of paramount concern for our communities.
The terms of reference document clearly states:
The consultation process under this Terms of Reference is available whenever Canada or Nova Scotia wishes to conduct consultation on the record and with prejudice with one or more Mi'kmaq Bands respecting established or asserted Mi'kmaq Aboriginal or treaty rights, including consultation in respect of a decision or activity concerning Crown land, water or a natural resource. The Parties intend that the consultation process under this Terms of Reference be the preferred choice for consultation by Canada and Nova Scotia with the Mi'kmaq of Nova Scotia.
This process, despite several requests, has still not been followed by INAC with respect to the development of Bill S-11. Nova Scotia has 13 Mi'kmaq bands and several more communities and shared lands. The Mi'kmaq have inherent rights to lands and waters, and through peace and friendship treaties, have never ceded land or water in this province. The Mi'kmaq of Nova Scotia have never surrendered their rights to water. These rights, therefore, extend beyond the right to safe drinking water.
As early as April 2009 in the draft impact analysis on water and waste water submitted by our office, we alerted INAC to the importance of proper consultation as defined in the terms of reference. I would go so far as to say that it was prior to 2009, but letters were sent to INAC alerting them in 2008 as well.
The analysis pointed out that contrary to the terms of reference, INAC had given no formal notice to the 13 Mi'kmaq chiefs and councils in Nova Scotia requesting consultation. This notice is essential in clarifying when consultation is intended.
This confusion was illustrated when INAC referred to the community session with the Mi'kmaq of Nova Scotia in 2009 — and that is a correction to the hard copy of the presentation — as an "engagement session," but in the background section of their document, they state that they were "undertaking a consultation process" and that the "first phase of the consultation process will consist of engagement sessions with First Nations, regional First Nation organizations and provincial/territorial officials."
As a result, the engagement session of March 2009 was rejected by the Assembly of Nova Scotia Mi'kmaq Chiefs. This breakdown of communications should have signalled to INAC early in the process that proper consultation was not being followed.
The Government of Canada was alerted at that time that one of the fundamental principles of the process was not followed, in particular articles 9.5 and 9.7, of which in the later ratified document of August are found in section 12.
Bringing particular attention to section 12 (a):
Where Canada or Nova Scotia wishes to initiative consultation under this Terms of Reference, shall provide notification in writing to the Chief and Council of all thirteen (13) Mi'kmaq Bands and the Assembly that consultation with prejudice and on the record is intended, respecting a particular decision, activity or subject matter.
As this legislation will have significant consequences to our Mi'kmaq communities and impacts on Mi'kmaq rights and title, it is imperative that meaningful and adequate consultation take place under this consultation terms of reference process.
There are grave concerns with the intent of this bill and the overall lack of effective and meaningful consultation with the federal government. It is clear that a one-day "engagement" session was not sufficient opportunity to consult with the federal government on this essential issue.
While the Mi'kmaq of Nova Scotia have specific concerns with respect to the process by which Bill S-11 came to be, there are also serious concerns about the content of the bill. These sections of concern will affect Mi'kmaq rights and title, and without sufficiently attached resources, stand to worsen rather than improve the ability of communities to deliver safe drinking water.
As a result of these concerns, the Assembly of Nova Scotia Mi'kmaq Chiefs has rejected Bill S-11 in its present form by resolution in November 2010. Regulations formed under the structure proposed by Bill S-11 are not likely to achieve success. To meet the goals the Government of Canada has stated for Bill S-11, clauses would require rewriting with the contribution of the Mi'kmaq of Nova Scotia.
Over hundreds of years, we have learned that each word in such legislation or agreement can have serious impacts for the Mi'kmaq people. The price exacted in Bill S-11 with respect to Mi'kmaq rights is too high, particularly for a bill that does not ensure resources will be forthcoming.
In Nova Scotia, the Assembly of Nova Scotia Mi'kmaq Chiefs has struck a Mi'kmaq water and waste water technical committee, which is carefully reviewing management options and challenges. Our difficulties are shared by other First Nation communities, but they are also unique to our geography and our history. Each First Nation must be free to determine what their immediate risks are and what challenges require immediate action. Our strengths and challenges differ, and a regulatory approach that does not allow for this autonomy and for the development of innovative solutions cannot thrive.
Laurie Suitor, Water and Wastewater Coordinator, Kwilmu'kw Maw-Klusuaqn, Mi'kmaq Rights Initiative: Good evening to each of you and thank you for the opportunity to discuss our concerns with respect to this bill.
There are three critical questions, it seems to me, that need to be asked of this legislation. Will this bill ensure safe drinking water for the Mi'kmaq of Nova Scotia? Will this bill protect the Mi'kmaq of Nova Scotia from future impacts to their water resources? Will this bill ensure Mi'kmaq rights and access to water?
The answer to all these questions is no, based on the following observations: The report of the Expert Panel on Safe Drinking Water, in 2006, warned that regulations that are not based on customary law are not likely to enjoy long-term success. The panel also articulated that the difficulty in delivering safe drinking water to First Nation communities is not lack of regulation but lack of resources. In addition, the report of the expert panel stated that "Provincial standards are not uniform across the country, and the existing regimes are at seriously different stages of completeness, quality and modernity . . . ."
The report pointed out that disparity across the nation rendered incorporation by reference of provincial regulations the least likely to succeed.
In Nova Scotia, due to an ongoing consultation process with the province under the aforementioned consultation terms of reference, the recently released provincial water strategy includes Mi'kmaq participation in such important areas as the Nova Scotia Water Advisory Group, and acknowledges the need for inclusion and consultation. I mention this point because it is an example of how following the terms of reference can result in positive water management structures and decision making that are fully inclusive.
Bill S-11 is not consistent with the United Nations Declaration on the Rights of Indigenous People, specifically with articles 18, 19, 20, 21, 26, 28, 29 and 32. By supporting the declaration, Canada has given its word as to how it will establish relationships with First Nations with respect to resources including water, particularly to the principle of full, prior and informed consent.
The greatest threats to water supply for Mi'kmaq communities lie with regulatory issues beyond technology, and Bill S-11 is focused on technology and who will control it. Impacts to the health of Mi'kmaq water supplies include naturally occurring high levels of arsenic; industrial pollutants; source water that lies outside reserve boundaries and is subject to damaging development; climate change events such as flooding, mining and energy pressures; and lack of capacity and lack of resources to ensure infrastructure maintenance and operator capacity.
Where source water plans are in place, funding and enforcement powers are absent. Underfunding results in equipment breakdowns, unsafe work conditions, poor water supplies and operator capacity gaps, which are significant issues in Mi'kmaq communities.
Bill S-11 seems to be constructed on the notion that if First Nations water and wastewater management were simply built on the municipal model with provincial oversight, their problems would be solved. In reality, we have already seen that those Mi'kmaq communities currently dependent upon municipalities are vulnerable to complete water loss in the event of scarcity, and to the difficulties that municipalities themselves now face as they become increasingly unable to maintain infrastructure in the face of rising costs, dwindling water supply, and increased levels of treatment.
Population pressures are also of concern. Within Mi'kmaq communities, population is expanding rapidly; and with shrinking land bases and increasing pressures upon water resources, the ability of the Mi'kmaq of Nova Scotia to participate actively in the preservation, access and management of their water supplies is vital.
Of the 13 Mi'kmaq communities, five depend upon water that is sourced from groundwater or surface supply and treated by municipalities. The remaining eight depend upon source water treated within the community, on private wells, or a combination thereof. All but one of these sources is deemed to be at medium risk, and that risk rating is conservative. Regulation alone will exacerbate these problems, not solve them, because if guidelines cannot be met now, regulated standards are far above the bar.
The Mi'kmaq of Nova Scotia insist on a high level of input into the development of such regulations. Had the methodology been adopted for achieving fully collaborative regulations based on customary law — presented by the Assembly of First Nations in 2008 — Bill S-11 would have avoided many of the pitfalls it is experiencing today.
Bill S-11 enables the Government of Canada to protect itself from the risk it will incur in the event of a water contamination event, namely, liability. The bill does not, however, protect the Mi'kmaq from the risk they will incur in such an event: death, disease and relocation. Fair legislation will help reconcile the distance between these two risks, and it will do so with a strong inclusion of the Mi'kmaq and First Nations voice.
What this bill does instead is reposition the relationship of the Mi'kmaq and the provincial government, increase municipalization and seriously erode Mi'kmaq rights, as enshrined in the Constitution.
There is no shame in taking the time to create effective regulation and legislation. There is shame only in moving forward with a bill that is doomed to fail the very Mi'kmaq and First Nation communities it claims to serve. Canada can do better, and it can start by consulting under the process outlined in the Mi'kmaq-Nova Scotia-Canada consultation terms of reference document to which Canada was a signatory. While regulation may separate the Mi'kmaq and First Nations from others, the impact of pollutants, scarcity, industrial, energy and agricultural demands and faltering economies will bring pressures to bear with respect to water on all of us. The Mi'kmaq have much to offer in comprehensive water management, and enabling legislation should facilitate the Mi'kmaq of Nova Scotia to do just that.
Randall Phillips, Grand Chief, Association of Iroquois and Allied Indians: Good evening, ladies and gentlemen. To those whom I have previously spoken to, it is nice to see you again. For those of you who do not know me, I am currently the elected Grand Chief of the Association of Iroquois and Allied Indians, representing 8 communities and approximately 25,000 First Nations people in and around southwestern Ontario.
[The witness spoke in his native language.]
I am glad to be here tonight to speak to you about Bill S-11. Thank you for accepting our request.
This presentation and our subsequent submissions are not intended to be exhaustive in arguments or research but is intended instead to give committee members an appreciation for the current reality facing First Nations communities and their challenge to provide safe drinking water. This presentation will give you a quick summary of our submission that we provided to you. More details in terms of what we are talking about are contained in our presentation.
The challenges I want to share with you tonight feed into the financial infrastructure challenges that the Chiefs of Ontario and the Assembly of First Nations, as well as my colleagues to my right, spoke about in their presentations.
Last year, the Association of Iroquois and Allied Indians conducted an environmental scan on its eight member nations, where workers from our health department visited each member nation and conducted interviews to assess their needs as far as drinking water systems are concerned. We found that the barriers to safe drinking water for AIAI member nations was not a lack of regulation — which I think you heard earlier — but a lack of access to drinking water systems, as well as a number of complex issues relating to funding and infrastructure deficiencies.
First, for drinking water systems and infrastructures, our findings show a financial need for all our First Nations communities, including the eight member nations. Two of our member nations have water treatment facilities that the majority of the community members are dependent upon for safe drinking water. Both of these communities are subject to challenges with respect to that safe drinking water access. I believe we call it source challenging. Within Ontario, we have legislation that talks about source protection. We are concerned about that protection.
Issues such as lack of funding for water facilities, up-to-date equipment and appropriate human capacity for operations impede the ability of First Nation governments to ensure safe drinking water. An increase in standards will not result in safe drinking water, nor will it address these problems.
The major problem with the legislation is that it does not obligate INAC or any other department to provide the financial resources for the infrastructure necessary to provide safe drinking water. As a result, we may be heading to another challenge at the Canadian Human Rights Tribunal level. Although providing the resources is an INAC responsibility, the department has yet to commit sufficient resources for such improvements, nor will it.
Bill S-11 suggests contracting out the management of First Nations drinking water systems to third parties when the notion of compliance does not happen. We already have this system in place and we already know the difficulties with third-party management in First Nations communities. When this bill was announced, we also made presentations with respect to that point. As we see now, in terms of how this bill has been written, we were correct in terms of predicting that suggestion.
We already deal with institutions that control water outside of our territories. Once again, we do not have a mechanism to deal with that process either, chair. We are looking for a better solution, which is to invest those funds directly in First Nation communities to address the real needs and barriers to accessing to safe drinking water.
Second, as previously mentioned, our member nations have reported inadequate human capacity to operate their drinking water systems. This lack of capacity is only in a couple of our communities. We will not even mention the issue with regard to the communities that do not have access to water systems.
The human capacity issues stem from the challenges of recruiting and retaining the appropriate number of water operators to fulfil their required capacities. New water operators attribute this challenge to the fact that operators working on reserve experience a significant disparity in wages when compared to operators working for municipalities. The new rules in Ontario demand that we have water operators operate on a 24/7 basis. We simply do not have the people in place to do so. When we do we train them and have them capable of running our facilities, then we lose them to the municipalities due to a higher wage. Bill S-11 does not address these challenges.
At the end of day, First Nations do not have resources to invest in the human capacity necessary to ensure access to safe drinking water. This legislation will likely result in provincial standards being used, causing discrepancies in standards because provincial governments have different rules. Certainly in Ontario that holds true.
To correct this problem, INAC and Health Canada must continue to invest in the Circuit Rider Training Program. It is through that program that we maintain expertise within our communities, but it does not address the need for more expertise. We need to continue with that program.
We also need to continue to support the First Nations Water and Wastewater Action Plan. Honourable senators, we know that action plan is not conclusive for all First Nations water systems. That report is ongoing. It still has not been finalized, even though we were told it was supposed to be finalized already. I can assure honourable senators that report will identify more deficiencies in the system and the need for additional resources to close the gaps.
Our member nations have reported issues with the action plan due to its bureaucratic and proposal-driven processes, and this plan needs to be streamlined and funding enhanced to make it work better. This plan will touch only the tip of iceberg once we understand the full picture of what our requirements are.
Such action, in terms of these changes, is predicted to result in more tangible results for First Nation communities: tangible results like construction projects, upgrading, monitoring, training and working on certification.
Regulations will create words on paper. A commitment of real resources is what is needed to put safe drinking water into First Nations communities.
My third and final point is that in all our member nations, drinking water is monitored and tested on a regular basis by community members. Community monitors have found a variety of different contaminants — E. coli, iron, nitrates and lead, to name a few — in the drinking water, and these contaminants pose a direct serious health threat to our community members. These results are based only on minimum testing. As First Nations communities, we do not have access to a whole bunch of other criteria in terms of testing water. There could be a range of contaminants that will not show up in any testing.
With respect to the testing, because it is now contracted out, we have issues were respect to even delays in reporting back. INAC again has cut that program in terms of utilizing testing facilities. Now we have to wait.
Such instances have caused 50 per cent of our member nations to issue a drinking water advisory in the past 12 months; I would say it is five out of the eight. One concern I have, honourable senators, is when we do issue an advisory, it can lead to intervention by local Children's Aid Societies in Ontario. One of the at-risk thresholds is access to potable, safe drinking water. When our communities do not have that water, we put our children at risk. The number of interventions within our communities has increased, simply because of this rule alone. You can see that having regulations for safe drinking water is not a guarantee that there will be other impacts within our community.
Two member nations experience critical time gaps of up to four days when sending water samples to off-reserve laboratories for further analysis. Overall, these problems are more the direct result of funding and resource limitations, and less on circumstance. It is difficult to see how this bill will address those problems.
We are talking about substantial investment in infrastructure as a first step to ensure safe drinking water in First Nations communities. I want to quote something that was in the AFN submission with respect to the notion of regulatory gap and a question that I heard asked of the witness previous:
First, and most critically, it is not credible to go forward with any regulatory regime without adequate capacity to satisfy the regulatory requirements. While it is tempting to assume that putting a regulatory regime in place will reduce the dangers associated with water systems, exactly the opposite might happen. Creating and enforcing a regulatory regime will take time, attention and money that might be better invested in systems, operators, management and governance.
I could not agree more.
To conclude, it is not apparent how Bill S-11 will address these underground issues, as well as those presented by representatives of AFN, Chiefs of Ontario, AIAI and numerous other First Nations groups.
In no place does the legislation delegate responsibility to a department to provide resources in a timely manner. Having identified the problem, there is no guarantee that it will be addressed. Simply put, the bill does not identify the problems that prevent First Nations from establishing drinking water systems, but rather identifies a perceived one. The bill appears to assume that the problem is lack of regulations, as opposed to lack of resources.
What I have tried to show in this presentation is that the government department, INAC, effectively controls the rate of water system development through the use of its funding and prioritization formulas. If this reality does not change, then it does not make sense to place additional rules and regulations on First Nations governments, since their capacity to deal with such things are subject to funding and support from the federal government.
If the federal government truly wants to deliver safe drinking water to First Nations communities, it should work with them and not attempt to abrogate or derogate from this notion of Aboriginal and treaty rights.
First Nations people in Canada are being held hostage with respect to these rights. Either we give them up or we do not have access to a common, basic human right, and that is access to potable water. It is a fundamental right, and we see this legislation as a violation of a human right for First Nations, and it will be challenged.
Given the complexities of these barriers, First Nations jurisdiction should be embraced and utilized in terms of trying to find solutions, rather than be limited and ignored.
The Chair: Thank you, Chief Phillips. Thank you, Ms. Gaudet, Ms. Suitor and Mr. Shoemaker.
Chief Phillips, I am not protecting anybody, but it is a known fact that the federal government has put about $2.6 billion into water for First Nations from 2006 to 2012. I know, and I think everybody agrees, that simply making regulations will not make all the water in the world safe for our First Nations people. However, do you see where regulations are a necessity?
I am not speaking about adequacy, but from 2006 to 2012, $2.6 billion will be spent, and possibly more. In the last budget I think over $330 million put toward the issue, and this money is completely justified. No one is questioning that. Do you think it is an honourable position to take, to have regulations? It is like having a police force and no Criminal Code or laws.
The toughest laws in the provinces are those that relate to water. I am speaking about non-First Nations now. There are huge fines, up to $200,000, and jail terms for being neglectful of water in non-First Nations communities.
I am not arguing whether the government is approaching the issue the right way, but do you see, where a regulatory system is required, that this approach will work? We cannot continue on like we have. In 2006, how many high-risk communities were there? There were 193. This situation is totally unacceptable. People were scandalized throughout the country. The question is about a regulatory system. I am not saying that you have to agree with this approach; I am asking you about a regulatory system in principle.
Mr. Phillips: Thank you for that question. In principle, I would say that a regulatory system is premature at this point. The government does not need to legislate to provide safe and potable water to its citizens, whether they are on First Nations territory or not. The regulatory system might be premature. Of the 190 high-risk communities, the two communities within our territories, the Tyendinaga Mohawks and Wahta Mohawks, do not even have access to these systems yet. It is premature to push this notion of regulation and define how it works when systems are not available in all our communities yet.
When we talk about regulatory development, yes, First Nations governments have a place at that table to figure out how that process will work. At this point, I do not see the need to put all the time and effort into developing a regulatory framework when we are talking about providing a basic human right that unfortunately needs resources.
You are correct in suggesting that the federal government has invested billions of dollars to correct this problem. What we are saying clearly, honourable senators, is that it needs billions more. A regulatory framework will not resolve the problem. We need to continue to push those costs even though they may be extraordinary.
The Chair: My only comment is, hopefully they can proceed in tandem. We can talk about that issue, grand chief.
Senator Sibbeston: Chair, the matter of consultation comes up all the time. Every First Nations organization seems to say that there has not been proper consultation. In the letter that the minister wrote to Grand Chief Stewart Phillip in British Columbia, he said: "We have been engaging with First Nations on a proposed" — maybe engaging is the proper word because that is different from consultation. The minister may be correct in saying he is "engaging."
I want to ask the ladies from the Mi'kmaq about consultation. You have a consultation process that is well established in terms of reference. You tried it out for three years. You say that the government seems not to have complied with it. Do you have instances where you were satisfied with the consultation pursuant to this tripartite agreement of Mi'kmaq, Nova Scotia and Canada?
Ms. Gaudet: We have several ongoing consultations, depending on the complexity of each file, but this one is of paramount significance and truly complex in its nature. We feel that adequate consultation has not been even initiated on this issue.
I think you spoke to those words around "engagement." Engagement does not necessarily mean consultation. While INAC indicated that their process will be consistent with that in Nova Scotia, Nova Scotia has an established process and it is unique. The province has those formal notifications in place, requesting formal consultation. With this particular file, that consultation has not taken place.
Senator Sibbeston: I do not know if you answered my question. So we understand what you mean by consultation, have you had any consultation processes that you have been happy with, pursuant to the agreement that you have?
Ms. Gaudet: Yes; I think that consultation involved the provincial government. Given the number of files and the involvement of the Province of Nova Scotia, our relationship has developed more closely with the province, but we have had other consultations that we have been happy with.
Ms. Suitor: When we had consultation on the provincial water strategy in Nova Scotia, because the consultation followed the terms of reference, we saw concerns included that were brought forward in our technical workshops. When we saw the strategy, we were able to see reflected in that strategy the priorities and concerns of the Mi'kmaq people. The strategy was new; it was different; it was a strategy that did not look like any other strategy. It acknowledged and incorporated consultation. We began consultation with the province saying, we cannot put that in there, and ended up with it included. That is what has been missed in Bill S-11 by not following the process.
With Bill S-11, you have to ask who is being enabled and what are they being enabled to do? One of the curious things about this bill is that all kinds of broad powers are granted to the Governor-in-Council and the Government of Canada — search and seizure, penalty, imposing taxation, imposing third party management, overriding self-governance agreements, and abrogating and derogating rights even in limited ways — but the only thing that is granted to First Nations is liability. That situation is odd for legislation that is meant to enable regulations that will result in safe drinking water for First Nation communities. It is unbalanced. It is a direct result of that process not being true.
In the earlier witness testimony, I sensed frustration from some senators who said, when is consultation enough? The answer is, when we have been heard. How do we know when we have been heard? We know because it will be reflected in the legislation. As long as it is not there, this may meet the requirements of a government in developing legislation, but it does not meet the requirements of First Nation communities to develop regulations within their community and address their needs.
Senator Dyck: Thank you for your presentations tonight. They were all clear.
I will go back to the question that was answered by the ladies from the Kwilmu'kw Maw-Klusuaqn, Mi'kmaq Rights Initiative. Will this bill ensure safe drinking water for the Mi'kmaq of Nova Scotia? You have clearly said no, you do not think it will. Some witnesses have said legislation might even make the situation worse.
Again I say that everyone on the committee wants to improve the drinking water on First Nations. Witnesses from INAC have appeared before this committee, in the spring of 2009, and said that they have reduced the high-risk communities from 93 to 48. Clearly, some kind of process was in place to improve the drinking water systems and I wonder if, in your communities, you have experienced an improvement of your drinking water through whatever process INAC has in place now that does not involve legislation? What is being done now to improve drinking water?
Ms. Suitor: Where we have seen an improvement in drinking water quality has been essentially in communities that received funding to improve their systems, both water and wastewater. Also, new guidelines and protocols have been developed that are more comprehensive.
One important thing about the difference in water management regimes, and the reason it is so important to have a voice from communities, is that Mi'kmaq science is based on observing water in the living laboratory with all its complicating factors. The science is not based on observing water in a laboratory from the end of a tap. Therefore, how the Mi'kmaq approach water management and what they identify as priorities that must be addressed will be different from what this legislation deals with.
As an example, the water supply for the community of Potlotek, or Chapel Island, is an open lake called Indian Lake. The lake is only a few feet from the highway, which many trucks traverse, and it is within about 150 feet of their sewage lagoon. Currently, that situation is okay. However, if we have severe flooding, which we see more and more because the Atlantic area is being hit hard by climate changes, as you have seen in the headlines, that lake and sewage lagoon will become one. There is no alternative source of water for that community. They have conducted studies and engaged consultants to look at problem and there is no alternative source.
Therefore, they went ahead with a source water protection plan, prepared by the Union of Nova Scotia Indians and coordinated by Kim Paul who did an excellent job. However, what was funded was the technology; there has been little follow-up funding to implement and ensure that source water protection plan can be put into place and can grow and change as the needs do.
Potlotek is only one example. You will see in our fuller brief more examples of situations where the real issues for water could be addressed if we brought in the more comprehensive way that First Nations view water management.
Senator Dyck: Chief Phillips, did you want to address that question?
Mr. Phillips: Thank you very much, Senator Dyck. The answer is, no, there is nothing I can point to in our communities that has improved anything. We can continue to try.
I mentioned earlier, efforts with regard to certification and training our operators. We need that certification and training, but that is a result of a change and a requirement that says we need those certified operators. The certification and requirement worked hand in hand.
Are there any benefits in terms of the water systems themselves? I have seen none, senator.
The Chair: Why would anyone build a sewage treatment plant 150 feet from your water source? That is bizarre. Was the lake not being used as a source of water when the plant was built? That is like building a sewage plant upstream from a water source.
Ms. Suitor: The lake was used as the source of water at that time. The system is an open lagoon system and not a sewage treatment plant, per se. Sewage is treated through the lagoon. I belief funding has been forthcoming this year to assist that lagoon system in functioning because it has not been able to deal with the amount of sewage coming into it. You will have to ask INAC why they placed the lagoon system so close to the water source. There might have been difficulties finding a place that would function well, but perhaps a lagoon system was not the best type of technology to put in place there.
Senator Dyck: On page 6 of the presentation by the Kwilmu'kw Maw-Klusuaqn-Mi'kmaq Rights Initiative, it is stated that "To meet the goals the Government of Canada has stated for Bill S-11, clauses would require rewriting with the contribution of the Mi'kmaq of Nova Scotia."
Can you expand on that point a little bit? Have people from INAC confirmed it, or have you received a letter or some communication that says that the Mi'kmaq will be involved in rewriting this bill?
Ms. Suitor: We have not received an invitation to do that. The Assembly of Nova Scotia Mi'kmaq Chiefs passed a resolution in November 25, 2010, rejecting Bill S-11 in its present form and outlining their concerns. We have not received that invitation, but we would be open to receiving it.
The Chair: Seeing no other senators on the list, I want to thank the panel, people from the Mi'kmaq and Iroquois Nations. Excuse me, we do have one question: Senator Pépin.
[Translation]
Senator Pépin: Mr. Phillips, if I understood correctly, with all the millions of dollars that have been or will be invested, your priority, as you have no resources in this field, is to get funding to train technicians, who would then be able to conduct analyses. Your technicians currently do not have enough training for waste water treatment purposes. You also add that you do not even have access to advanced tests and that you can wait up to four days before getting the results of those tests.
So the priority would be to grant you funding for personnel training. Then you would only have to use the mechanism. The idea at the outset is thus that you do not have the resources to train technicians adequately so that they can conduct analyses and operate the machine.
Did I understand correctly?
[English]
Mr. Phillips: Thank you for the question, senator. Mr. Chair, the senator brings up a good point with respect to this notion of access to training dollars. I will not go so far as saying that increased access to training and certification will resolve this issue we are talking about. Training and certification are key and they are helpful, however. As standards and more regulations come into place, having our people trained will be key so they can meet those challenges.
That issue is separate because we are talking now about only a limited number of First Nations communities that even have systems in place so we can deal with this training. We are talking about access, straight and simple. I have communities already — and you have heard from my colleagues to the right that there are communities — that do not even have access to these systems.
Investing money and focusing only on training and what exists do not address the problem, again, in terms of ensuring that everyone has access to safe drinking water. However, training and resources are key in terms of the continuing notion of training and development of our people to meet regulations.
The Chair: I thank the witnesses for presenting, and for answering questions put by senators in such a straightforward way and with such clarity. We thank you.
Senators, if there is no other business at this time, we will adjourn.
(The committee adjourned.)