Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 19 - Evidence - March 1, 2011
OTTAWA, Tuesday, March 1, 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 9:30 a.m. to give consideration to the bill.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: Good morning. I welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either on CPAC or on the Web. I am Senator St. Germain from British Columbia.
The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada. 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 properly fund system operation and maintenance, and lack of clarity with regard to roles and responsibilities.
This morning, we continue our study of 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 witnesses from four organizations: The Federation of Saskatchewan Indian Nations, the Mohawk Council of Akwesasne, the Ontario First Nations Technical Services Corporation, and, appearing as individuals, Professor Steve Hrudey and Grand Chief Stan Louttit, who were members of the 2006 Expert Panel on Safe Drinking Water for First Nations.
[Translation]
Before we hear from the witnesses, I would like to introduce the committee members present this morning.
[English]
Senator Sibbeston is from the Northwest Territories. Senator Ataullahjan is from Ontario. Senator Poirier and Senator Stewart Olsen are from New Brunswick. Senator Raine is from British Columbia. Senator Demers is from Quebec.
Members of the committee, please help me in welcoming our first witnesses, Grand Chief Stan Louttit of the Mushkegowuk Council and Professor Steve Hrudey of the University of Alberta. Both witnesses bring us their expertise as members of the Expert Panel on Safe Drinking Water for First Nations, which issued its report in November 2006.
Please proceed with your presentations, which will be followed by questions from senators.
Stan Louttit, Grand Chief, Mushkegowuk Council, as an individual: Thank you for this opportunity and for inviting me to this committee to provide my perspective on my experience in 2006 as a member of the Expert Panel on Safe Drinking Water for First Nations. I will also provide my perspective as the elected Grand Chief of the Mushkegowuk territory in Northern Ontario.
I was told I had five minutes. Is that correct?
The Chair: Yes. We have many important witnesses. Therefore, we appreciate concise presentations, and the same from the questioners and the responders if possible.
Mr. Louttit: I will try to condense my one-hour report to five minutes.
When I was appointed to the Expert Panel on Safe Drinking Water for First Nations by the minister of the day for Indian Affairs, supported by the Assembly of First Nations, I took that as an opportunity, and as the elected grand chief, to hear what is going on across the country and to help in influencing government with regard to the importance of safe drinking water in our communities. The things we heard back in 2006 are as relevant today as they were five short years ago. I ask myself the question: Have things changed in the five years since the report was given to the minister in the fall of 2006?
Today, you will hear some of the key elements that we heard and provided in our report to the minister. For example, a First Nations relationship with the land, the territory, including water within homelands, is something that we carried historically and treasure still today.
We indicated in the report our status as First Peoples on this land. We talked about our rights as treaty people and our special trust relationship with the government prior, during and post-treaty. Our status as recognized people in this country is of significance when coupled with our historic relationship with the water.
We talked about the need for the government to properly consult with our communities, our leadership, our operators, our elders and our people with regard to water. We must get that perspective moving forward to assist the government in putting a regulatory process in place. We made it clear that we need to be at that table.
We talked about the need to identify the required resources to have safe drinking water in our communities, not only in terms of funding but also in terms of human resources.
We talked about the importance of having the required resources before a regulatory regime is put in place. Why develop a regulatory regime without having the financial resources to be able to meet its requirements? This law that is being proposed would set us up to fail miserably when coupled with our existing lack of revenues and funding to sustain ourselves and our communities. It would make it difficult to move forward.
We talked about building capacity as well. We thought then, as we think today, that it is important to build the capacity of our communities in order to have the standards that are expected by their people; to be able to operate the plants and systems within their communities; and, if they so desire, to be able to operate any water plant in any part of the country.
I thought about this a bit more. I have a friend in the community of Attawapiskat, where I grew up. He is about my age; but I am not saying how old. He has been an operator for 30 years. Perhaps he has a grade 8 or grade 9 education. He does his job well. He operates that plant at a level 2.
Many of the communities in my area are in the same situation. These people have been operators for many years, and they do a fantastic job for their communities. Many of these people have families and grandchildren. As much as they would like to finish their high school education and have diplomas and certification, it is just not possible. Like all of you and most of us around here, family comes first.
Moving forward, we need to engage our young people — the next generation of people growing up. We do not hear much about promotions or public relations activities within our communities and within the government as well to get our people interested in becoming water plant operators. We hear about lawyers and doctors, but we do not focus on building capacity with our young people in the area of infrastructure in our communities. Perhaps that is something we should think about moving forward so that we have properly certified people for the next generation. As chiefs and leaders in our communities, we have a responsibility to do that, but we need partners in government and others to make it a reality.
Have things changed since the 2006 report? Perhaps a little. I cannot speak of the national numbers and can only guess that in excess of 100 communities across the country are in some kind of difficulty regarding the state of water in their communities. I would venture to guess that approximately one half of those would be considered high risk. In my area, the Mushkegowuk territory along the Ontario side of James Bay, Attawapiskat has had problems with its water for as long as I can remember, mainly with the intake. I started to get involved in regional politics in 1985, both as an administrator and a leader. Study after study has happened since 1985. Today, they are still on a boil-water advisory. INAC is very good at coming up with Band-Aid solutions: "Here is $100,000; we will do this. Here is $50,000 to take care of this problem for the next two months." That has been the history in that community and, I venture to say, in many of our communities. Why do we not spend the money that is required to move the intake from the lake and put it where the river system is so we will not have that problem moving forward? It is an investment by the government in the community. The water source is a lake, and during our harsh winters temperatures can drop to minus 40 degrees Celsius. Most of the lake is nothing but ice, so where does the water come from? There is not enough water to provide clean potable water for that community no matter how hard you try to clean it and how many solvents are put in it. Let us change it. The community is under a boil-water advisory today as we speak.
In 2005 Kashechewan gained national attention. I was the grand chief at that time. Chief Leo Fridayand I travelled across the country. We came here to lobby for help for that community. Where are they today? Government spends hundreds of thousands of dollars yearly to have an engineering firm in that community to be able to have good water. Where is the attempt to reach out to our own young people and use some of that money to build capacity? Will we rely on engineers and spend millions of dollars year after year? We need a plan to build the capacity so we can do it.
In summary, we have a lot of work to do moving forward, and I urge Canada not to do it alone. Time and time again in the expert panel report, in other reports and in presentations that you have heard and will hear, we have said that we want to be part of that process. It is a simple premise in life, but often government has a difficult time understanding what that means or they cannot do it; their vision is too narrow. When it comes to regulations and laws that directly impact a group of people, in this case native people, government needs to work with them and sit with them to design something that will be mutually acceptable. Perhaps that is your attempt with this bill. Let us work on it a little harder and better so that we are part of the solution — not one side telling us, whether we like it or not, what it will do after consulting with us a little bit. It is 2011; let us have a different attitude about the relationship our elders envisioned in 1905 when they made a treaty with the government.
Meegwetch.
The Chair: Thank you, Grand Chief Louttit.
Mr. Hrudey, please proceed.
Steve Hrudey, Professor Emeritus, University of Alberta, as an individual: Honourable senators, I greatly appreciate this opportunity to share with you my views concerning the topic of safe drinking water for First Nations as you review Bill S- 11. You previously heard testimony by Dr. Harry Swain and me on May 15, 2007, concerning our findings together with Grand Chief Louttit for the expert panel. My views have not changed, so I need not consume your valuable time by revisiting all of that evidence.
I wish to focus my evidence before you on three matters: first, operational competence in providing safe drinking water, which will reinforce comments you heard from Grand Chief Louttit; second, Canada's 1977 policy commitment to provide equality between members of First Nations communities and other Canadians in levels of community servicing; and, third, some practical matters of enforcement compliance, which is largely invisible in Bill S-11.
While the majority of Canadians are routinely provided high-quality drinking water that is safe by any international standard, assurance of that is less secure as we move to smaller and more remote communities. The bottom line for ensuring safe drinking water is competence — i.e., training, knowledge, public health awareness, commitment and functional capacity — of the water provider. The smaller the entity charged with providing drinking water, the more challenging it becomes to assure competence. Essentially, all First Nations drinking water systems are small systems. That is a reality you need to recognize.
Consider the following image to illustrate my point about competence: Would you be comfortable as a passenger travelling in a plane flown by a pilot being paid minimal wages with minimal training and technical support? Yet, in many small communities in Canada, including First Nations, we place responsibility for delivering safe drinking water upon personnel who are often undertrained and are mostly underpaid for the enormous public health responsibility they must discharge. A serious operational mistake can make an entire community ill.
Expert evidence we heard during our hearings in 2006 confirmed my belief that even if physical facilities are less than optimal, a well-trained, responsible operator will be able to protect the safety of a community much better when challenged than an inadequately trained operator equipped with the best possible treatment facilities. Providing safe drinking water is a knowledge-intensive undertaking, and it requires a support system that equips and supports operators in taking on that challenge.
How difficult is it to recognize where the real problems lie? Canada has made major investments in upgrading water treatment facilities for First Nations, with some excellent improvements to show for that investment; yet, the emphasis has been on facilities, without the necessary greater emphasis in tackling the more challenging task of training competent, responsible operators for every facility.
Given the high unemployment that exists on many remote First Nations reserves, an emphasis on creating skilled employment should be an obvious priority, even without the vital role that competent operators play in assuring safe drinking water.
Above all else, our focus must be on assuring operational competence. There is an international best practice model, the "water safety plan" approach, which can be described as a know-your-own-system approach. It provides a natural vehicle for assuring operational competence.
Bill S-11 will achieve little towards assuring safe drinking water without an absolute commitment to seriously address the need for operator competence.
Second, concerning Canada's 1977 policy to provide equality between members of First Nations communities and other Canadians in levels of community service, the previous discussion foreshadows this topic. There are most certainly places in Canada where, because of the major investments in upgrading physical facilities for First Nations, these are now better or at least newer than non-First Nations communities under similar conditions of size and isolation. Small and isolated communities in Canada universally face challenges in achieving adequate competence, but some communities have been able to achieve success by recognizing the importance of competent operations.
Some First Nations communities have benefited from Circuit Rider Programs that provide regional support for isolated operators, but these programs are generally oversubscribed and underfunded.
Overall, assuming the 1977 policy still governs federal decision-making, a comprehensive review of the challenges facing smaller communities is likely to reveal the need for a greater proportion of federal investment in meaningful and effective operator training and support compared with the investment in physical facilities.
I have provided you with copies of a new policy paper that was released yesterday, commissioned by the C.D. Howe Institute, which documents that we have problems across the board with safe drinking water in small communities in Canada. This commentary identifies a lack of leadership as a major problem.
Regarding enforcement and compliance issues, including inspections, Bill S-11 only addresses these matters in subclauses 5(1), 5(2) and 5(3), which authorize the Minister of Indian Affairs and Northern Development or the Minister of Health or both together to enter into agreements "with any province, corporation or other body" to administer and enforce any of the regulations under the act.
This raises some major questions. What will happen in a given province if the relevant provincial agency has no interest in administering regulations respecting First Nations? If Bill S-11 contemplates using a corporation or other body for this purpose, would it not be prudent to provide the authority in the proposed act to create a regulatory/ enforcement agency for this purpose? Because the Departments of Health and Indian Affairs and Northern Development each fund aspects of the functional capacity of First Nations to deliver safe drinking water, those departments would surely be in a conflict if they would be expected to enforce regulations bearing on matters that may be deficient because of inadequate funding.
While I applaud the continuing commitment of the federal government to deal with matters of safe drinking water for First Nations, I do not believe Bill S-11 will contribute effectively to that goal without some serious re-working primarily to assure that operator competence will be supported and achieved under any resulting regulatory structure. After all, who can argue with the merits of managing drinking water according to the emerging international best practice of a water safety plan, know-your-own-system approach?
Bill S-11 provides a unique opportunity to fill the leadership void in Canada that I have mentioned, and this will have resulting benefits for Canadians in all small communities.
The Chair: Thank you for your presentations.
With regard to the water commission, your third point, given the diversity of some 620 First Nations across this country, how would you foresee a commission operating? You could be developing another Ottawa, which I do not think the country needs.
Mr. Hrudey: This is true. I was not advocating a specific model, i.e., the First Nations water commission that we referred to in the expert panel report. That is a possible model. My comments were simply that Bill S-11 as it is structured right now gives no authority to the government to create anything other than what exists. Who will regulate and enforce this bill?
The Chair: During your study of the Circuit Rider Program, do you see that as an integral part of the solution?
Mr. Hrudey: Absolutely. If there is one thing you can hang a gold star on, it is that kind of program which facilitates support for the dedicated operators who need help.
If we look at the dollars that have been spent, we spent hundreds of millions on facilities. How much have we spent on the human resources side of it? Not nearly enough.
The Chair: Thank you very much.
Senators, I brought up the fact that we are asking for concise questions because we have other panellists this morning.
Senator Dyck: Thank you for your presentation this morning, gentlemen.
It has been suggested by some members of this committee that this bill will improve the safety of drinking water on First Nations reserves, including those in the Far North, yet I think I heard this morning that Attawapiskat has had bad water since the 1980s. Do you think this bill will somehow prevent serious public health safety issues with respect to drinking water? Can you see a way that it would lead to that goal? That is what some people are trying to say.
Mr. Louttit: The only way this can work, as I indicated, is if the proper resources are provided to help those communities now and into the future, both in terms of financial resources and human resources. To have this bill in place before meeting the required needs of those communities in terms of people and dollars will just set up those communities to fail again.
Mr. Hrudey: I would reinforce that. The presumption in the bill is that setting up a regulatory regime where First Nations in given provinces would be governed by the regulatory regime in that province presumes that the regulatory regime in each of these provinces is dealing adequately with the small communities. I would tell you it is not, in most places in Canada. That is what this paper is all about.
We have a problem with small communities across the country, and we have additional challenges with First Nations.
I am suggesting that the discussion on this bill provides an opportunity for the government to show some leadership, which is lacking on the issue of drinking water across the country in other areas. It is getting the focus on what matters, which is the human resources side, and that is more challenging. It is more difficult to sit in an office in Ottawa and deal with human resources challenges and provide training on the ground than it is to sign purchase orders for big treatment facilities. I am afraid that is where the emphasis has been in the past.
Yes, much of that is important, but it is not enough on its own. I would rather see some of that money spent on the human resources side, where the real, crying needs are.
[Translation]
Senator Dallaire: I apologize to Grand Chief Louttit and Professor Hrudey for being late. I hope you will forgive me.
[English]
Professor Hrudey, you have been in front of Senate committees several times.
Mr. Hrudey: I have been before this committee one and twice before other Senate committees.
Senator Dallaire: You have a report there by the C.D. Howe Institute, which is quite significant testimony on the problem, from what I gather. Is that correct?
Mr. Hrudey: Yes.
Senator Dallaire: Is it only in English?
Mr. Hrudey: Unfortunately, C.D. Howe only publishes in English.
Senator Dallaire: The word "unfortunate" does not help because I cannot read that thing until they translate it. If we are to go to a line-by-line analysis of the legislation, we will not be able to use that officially. We will have to use it unofficially because it is in English only. That is the rule in this country — two languages. I am just sorry that we do not have that information in a more timely fashion. I am not holding the witness accountable for that but rather holding the system accountable in not being able to respond to that.
The Chair: Senator Dallaire, to be fair, apparently the report was just released yesterday. That comment is not an excuse but rather for information.
[Translation]
Senator Dallaire: We are tired of hearing excuses. The rights of aboriginals have been violated in our country. What can we say about La Francophonie, which is always fighting to implement regulations and acts? Despite the fact that legislation has been implemented, problems have persisted for 40 years. To right these wrongs, we are getting an earful of excuses.
Our obligation is to put our vested rights fully into practice. I could read the document in English, that is not the issue, but by doing so, I would be going against the legislation I am defending. I know that you cannot translate the document and that you have only 24 hours to get it translated.
I am terribly sorry for having to protest against this, but this problem arises far too often.
The Chair: I understand very well, Senator Dallaire. Do you have a question?
Senator Dallaire: I certainly do.
[English]
Professor, you spoke about an international water system called "know-your-own system." You mentioned it in your text. What is that? Is it an international development set of criteria?
Mr. Hrudey: The wording you will find in the World Health Organization's Guidelines for Drinking-Water Quality, published in 2004 and updated in 2008, is the "water safety plan" approach. The "know-your-own-system" approach is my explanation of the essence of a water safety plan. It is to assure that you know your own system.
If I may, on the other matter, the chair of this committee did not know about me bringing this paper. Frankly, I did not know until last week that it would be released yesterday. I have been working on it for four months with the C.D. Howe Institute. It was a coincidence that they released it yesterday.
Senator Dallaire: I hope the C.D. Howe Institute does not get federal money.
Has Canada signed on to the international standard established by that world body?
Mr. Hrudey: There is no signing-on process as such. Canada participated in the development of those guidelines, but, frankly, that is one of my criticisms of our response federally. The responsibility for regulating drinking water in Canada rests with the provinces, and that is how our Constitution has functioned. However, Health Canada provides a secretariat and coordinates a federal-provincial-territorial committee on drinking water. Despite having been involved in World Health Organization meetings, they are involved in "small community" systems meetings around the world, and they are not bringing back what other countries are doing to deal with the issue. If you ask water providers in communities across Canada if they have a water safety plan, I do not think you will like the answer. We are just not plugged into this.
Senator Dallaire: We agree to conventions, sign on to international standards and participate in writing them, but we do not implement them. Is that what you are saying?
Mr. Hrudey: Yes. Health Canada has taken a timid approach, saying, "While the responsibility for regulation is with the provinces, we cannot tell them what to do so we will just focus on generating numbers." They have been reluctant to show leadership by saying, "We have a problem in our smaller communities, so let us get together across the country and share knowledge and come up with solutions. Let us look at best practices elsewhere."
Senator Dallaire: The Aboriginal peoples of this country are under the guise of the federal government. Is that correct?
Mr. Hrudey: That is correct.
Senator Dallaire: Do you understand any logic to this bicephalous conception of signing international conventions when, yes, the responsibility rests with the provinces? An army base somewhere could have water that is not up to standard because the federal government says it is a provincial problem. In fact, we have that situation in Shannon right now outside Valcartier. Is that correct?
Mr. Hrudey: In fact, an ad hoc group was established due to the innovation of a handful of civil servants. Something like 22 federal departments are involved with water issues, and they have organized an ad hoc group to develop internal guidelines for safe drinking water. They are struggling with this ad hoc, unsupported activity to deal with the very problem you are talking about.
The message for this committee is that there is a unique opportunity here with this bill to show some leadership. This is a federal jurisdiction. There is an international best practice out there. Let us get on with it.
Senator Dallaire: However, it is not reflected in this bill.
Mr. Hrudey: No, it is not.
Senator Dallaire: Grand Chief, I would like to ask you about the training of personnel and the operation and maintenance of systems. We have seen that the federal government and INAC sign a treaty but put no money or resources into implementing what they sign. They will throw in some initial cash, but there is no money for implementation. Are you confirming to us that there are insufficient funds for training and for maintaining existing water systems, let alone for building new ones?
Mr. Louttit: Yes, I am, in relation to the area I come from.
I will not speak on their behalf, but in regard to the Circuit Rider Program, I should say that the government has made some attempt to provide dollars to assist in capacity building. However, at the end of the day, is it reaching the community and the people in the plants and who are in dire need of training? Are we reaching out to the next generation, our young people, to get them interested and to build capacity there as well? Many of these plants are outdated and old, and they cost probably double the amount that would ordinarily be spent on a water treatment plan.
Senator Dallaire: Do you believe this bill will sort that out?
Mr. Louttit: No.
Senator Sibbeston: Both of you gentlemen were part of the 2006 Expert Panel on Safe Drinking Water for First Nations, so you are in a great position to comment on a bill such as this. One could say that a lot of experts, as it were, have given a lot of information and advice to the government, and one would think the bill before us is a result of all the advice that the government has taken.
Mr. Louttit, you said that the regime proposed by the government is to set up to fail, so you are not too complimentary about the bill.
Mr. Hrudey, you are a little more positive in the sense that you see problems, but in the end you say there is a need for a body to deal with the regulations.
This committee is faced with what to do with this bill. Do we amend it, pass it or just accept that it will be an incremental step forward? Should we just go with it? I would like to hear a little more from you with respect to what you would advise us to do with this bill. Please be a little more specific, if possible.
Mr. Louttit: As you indicated, there have been many studies and a lot of work has been done in the past in regard to this issue. The government has gone ahead in terms of drafting a bill.
If you are looking for a recommendation from me, suspend that bill — put it on hold for a while. Do not put it on hold forever, but for a while. Come and see us where we are. Let us sit down together and talk about how we can fix this problem.
We talked about two things in terms of this bill going ahead. There is very little in it about meeting the dire lack of capacity in our communities, and we need to be able to fix plants that are in bad shape. Let us take care of those things. Then, working with us and sitting with us at the same table, let us design something that will work for us. We will then be part of the solution by creating ideas and sharing in the discussion; we will be using our knowledge and expertise, along with yours, to make something good in our communities.
The government never does that. They say, "It is my way or the highway and that is how it will be." How many success stories are out there as a result of that type of thinking? Instead, let us sit down together and work it out.
Mr. Hrudey: I would urge you to avoid the temptation to pass this bill as an incremental improvement because I do not know that it will be. The implementation of government policy is done through government departments. How can you give instructions to government departments if you do not do it in the legislation that you pass? There is not enough direction in this bill as it stands now to have Indian and Northern Affairs Canada recognize what is needed, which is a focus on operational competence and human resources instead of simply paying big sums of money to engineering firms to design treatment plants. Yes, those plants are needed, but that is not the most urgent need. The most urgent need is support for the people side of the equation. There is no direction for that in this bill. If it is passed, you will not get incremental improvement; you will just get more of the same inertia.
Senator Demers: The grand chief said the words "set up to fail" and that is very scary. I have a hard time in life thinking that way. You do not set up to fail; you set up to win. Does that mean you do not see any hope or progress? The answer might have been given. Is it mismanagement? In terms of setting up to fail, it goes back as far back as 2006 and it is now 2011. That is a long time.
I do not question what you have said, but I have a hard time understanding that we set up to fail. Does it make sense? I do not know.
Mr. Louttit: It makes a lot of sense to me.
Senator Demers: That is why I want your answer.
Mr. Louttit: You are setting up an act that will regulate how water is to be managed, run and operated. It will establish the policies, rules and regulations governing water in our communities. However, you are not doing anything about the people in our communities being able to manage and operate with the capacity they need to deal with those new stringent policies and regulations about how to run the plants.
My colleague and I both think that you need to build that human resource part of it. You are making a law for our plants to be at X capacity, which is where we want it to be; we want it to be there, too, but our people are here, at Y. We need to level that playing field so that we have good, qualified operators to operate that quality system. We are at X right now and we have to be at Y.
Mr. Hrudey: The answer to your question lies in the circumstances before us. The expert panel report was tabled in the House of Commons in December 2006. This committee had its hearings in May 2007 and filed its report in May 2007. The committee observed what we found in our report because you heard it from many other people. The report said that if you put the regulations first, it will not work; you need to deal with capacity.
We are now in 2011. How long should it have taken to conceive this bill and bring it forward? Drafting takes a certain amount of time, but this bill adopts the least favoured alternative from our panel report — provincial regulatory approaches. That presumes that provincial regulatory approaches are working. They are working in Ottawa, Toronto and in the big cities. Go out to the small, rural communities in any province in this country and I do not think you will find that things are working all that well. Therefore, I do not think adopting this bill as set up is the answer.
Senator Brazeau: Mr. Louttit, you answered Senator Dallaire's question with respect to resources and funds. You confirmed that in your estimation there is a lack of funds with respect to money for water and waste water systems.
I will ask the flip question. Are you in a position to confirm that those communities that run water and waste water systems spend 100 per cent of the funding they currently receive for that purpose?
Mr. Louttit: Of course. The minimal funding they get to maintain their plants is used to maintain those old plants and to pay three or four times the cost to bring parts into the remote communities where the only access is by air. They cannot drive down to the Canadian Tire store, pick up a part and only spend $10 on gas. You know that.
In our remote communities, the cost of doing business in terms of maintaining our facilities and the time it takes is anywhere from half to three quarters more than anywhere else. Therefore, yes, the funding received by the First Nations from INAC to operate those plants is used exactly for that purpose.
Senator Brazeau: Mr. Hrudey, often legislation is introduced as a solution to a problem. There is a regulatory gap with respect to clean and safe water. The premise of this legislation concerns the health and safety of First Nations citizens with respect to safe and clean drinking water. Legislation is introduced and passed, and then regulations are developed. The government has indicated that if this bill is passed those regulations will be done in a joint consultation with First Nations peoples. By the same token, budgets and funding discussions happen after legislation is passed.
This committee has heard the fair concerns with respect to resources. It is easy to pass legislation. As you have said, if proper resources are not put in place for the proper infrastructure, training, certification, et cetera, then there will be problems.
You said that this legislation needs reworking. Having said that, if the proper resources with respect to infrastructure, et cetera, do follow and are put in place should this bill pass, does this bill still need reworking?
Mr. Hrudey: Yes. This bill, as compared with other legislation that is effective, has a four-paragraph preamble that basically sets up some background. There is no vision in this document. My previous answer in terms of the situation we are dealing with was that it has been almost five years since our panel report, and yet this is what has come back. In the meantime, Indian and Northern Affairs have been doing largely what they were doing before. They have not accepted a direction from Parliament as to what needs to be done. This bill does not give them that direction and does not focus them on the problem. It simply provides a means to establish regulations.
If you do not give INAC direction, they will continue to do what they have been doing. It is not just a matter of passing this bill and fiddling with regulations; there needs to be some vision and leadership in this bill, which are not there.
Senator Brazeau: That is a fair answer. You have told us what Indian and Northern Affairs Canada has not done. Specifically, what should they do to improve upon this bill?
Mr. Hrudey: If nothing else, they need to show in the preamble a set of vision statements as to how to achieve providing safe drinking water for people. It is not simply a matter of building plants or signing an agreement with a province to adopt their regulatory regime, which is all that this bill offers.
Senator Dallaire: Your report was in 2006. The government created a clean water project, but I forget its official name. The government has poured up to $1.3 billion into the project since then. We have seen significant improvements in the number of drastic cases as well as in the number of cases that have become reasonable, although not resolved. In the current budget, the government is planning to put more money into that continuum.
However, in 2009, the need for legislation appears. I do not understand. If the program was advancing and things were improving under the old plan, why do you think the government needed this bill to continue and advance a program that it has been working on for the last five years?
Mr. Hrudey: I cannot pretend to know the inner workings of government, but I understand that the impetus for our expert panel was the report of the Auditor General in the previous year that said there was no regulatory regime for First Nations. That has not been dealt with. Presumably this bill is an attempt to deal with that item from back then.
If I could just address that, I fully acknowledge the amount of money that has been invested in trying to improve things, but is it being invested in the right things? This bill provides an opportunity to set some direction as to where future investments will go; but it is not doing what it needs to do.
Senator Raine: My question is directed to Grand Chief Louttit. I understand that this bill is enabling legislation. It would enable the communities and the regions to develop regulations that would work for them. I would think there would be a possibility in the regulations to insist on the level of training required. With that in place, there would be pressure to provide funding for that training. Currently without that in place, perhaps INAC cannot put the resources where they should be. Do you see any possibility of putting regulations in place in your area that would help your capacity building?
Mr. Louttit: I could see that possibility if we were part of that process.
Senator Raine: The intent of the legislation is for you to draw up the regulations; the devil is in the details, so to speak. This is a framework that would allow the regulations developed at the local level to be enacted nationally. Every locality is different. There is so much difference in the geography and the types and sizes of communities. People have different problems. When I look at this bill, I see all kinds of opportunities for each community to be involved in designing their framework. This bill provides the global framework, and inside that framework would be solutions for your community's priorities.
Mr. Louttit: The framework is important, but why are we not part of the design of that framework? I know it is important, after the fact, to collaborate and consult on the design of the regulations. I agree with that, but doing the framework in isolation does not make any sense to me.
Is there any reference in this framework bill to what we heard from the expert panel on the status of our people, our relationship with water, our treaty rights and the constitutional entrenchment of our status? Is there anything in the bill about building that capacity, not adopting the bill until those things are met, and fixing those plants before this becomes law? Is there anything about those things in the framework?
That is what I mean. This bill was developed in isolation. Let us put it on hold for awhile and review it together to develop something that will work. Then, we can further the partnership by sitting together to design the regulations. Right now, there is no reference at all, from what I can gather, to those key points that I talked about.
Mr. Hrudey: A framework is fine because that is often how things are moved forward. However, this framework is lacking the direction that will solve the problem. This framework reflects minimalist thinking to simply pass a bill to say we have a regulatory framework for First Nations. It does not set any direction for the civil servants who will implement this through regulations. If you do not give them that direction, I guarantee you will not get the result that we are talking about.
The Chair: Thank you Professor Hrudey and Grand Chief Louttit. We appreciate your expertise.
Grand Chief Louttit, you are living the experience; and Professor Hrudey, your credentials are huge. We thank you for your clarity and for your responses to senators' questions. We look forward to working with you in the future.
Our second panel, colleagues, is comprised of three organizations. We welcome Vice-Chief Lyle Whitefish from the Federation of Saskatchewan Indian Nations. Joining us on behalf of the Mohawk Council of Akwesasne are Grand Chief Michael Mitchell and Jay Benedict. Representing Ontario First Nations Technical Services Corporation are Executive Director Bob Howsam and Senior Circuit Rider Trainer Jason Henry.
We will start with the FSIN and Vice-Chief Whitefish.
Lyle Whitefish, Vice-Chief, Federation of Saskatchewan Indian Nations: I thank the Senate committee for the opportunity to present our views and position on the bill itself. I understand that much work has been done. I will read a prepared statement for the Senate this morning.
The Chair: Please keep it as tight as possible because we have many witnesses and questions.
Mr. Whitefish: The land and air are gifts for First Nations from the Creator. It is from this position that we agreed to share these with the newcomers when treaties were signed with the Crown. We never ceded those gifts in the treaty process. We were stewards of those gifts during treaty making and will be for generations to come. However, since treaties were signed with the Crown, federal and provincial governments have assumed and legislated themselves as stewards and even owners of the land, air and water. We never agreed with these actions. This legislation, Bill S-11, is another form of infringement of the treaty process.
Senators, the legal and treaty reviews were prepared by our international lawyer, Sharon Venne. These are a few of her reflections.
When our ancestors entered into the treaty with the British Crown, water was included in the treaty. "For as long as the rivers flow" were the words spoken at the time the treaty was made. In any discussion on water and those regarding use of water, our treaties must be considered. Bill S-11 clearly calls into question the honour of the Crown.
The honour of the Crown comes from the Royal Proclamation of 1763 that has been included in the Constitution of Canada. The settlers of the Crown were not to interfere with the indigenous peoples unless there was an agreement or treaty in place. The Crown entered into peace and friendship treaties to ensure that her settlers would be able to live amongst our peoples in peace. Our ancestors have kept these treaty commitments.
When Canada repatriated the Constitution in 1982, treaty rights were protected by section 35. We hold a unique legal and constitutional position as a result of the Royal Proclamation of 1763, the treaty-making process and the Constitution Act of Canada.
We have been told by federal government representatives that this is an enabling bill. What does that mean? The bill's opening summary, preamble and text speak well and are well intended. However, from clause 3 onward, the bill starts to define the regulations and to give the minister and cabinet more authority.
This bill also assigns responsibility and liability to the chiefs and councillors of communities. How can this be done with no dollars or resources committed to meet these requirements?
The bill also relieves the government of any liability. Of particular concern is that the bill gives the minister and cabinet, over the treaty, an ability to unilaterally define the responsibility of the treaty. This is not the equal partnership our ancestors envisioned. The matter of treaty is significant, as the abrogation clause looks to give the minister and cabinet more unilateral say regarding the treaty. Also, referring to where the regulations are addressed further diminishes the equal relationship that First Nations and the Crown have in the treaty process.
There should be no treaty implementation process impacted by this bill or the regulations. The treaty implementation process is another table that should be left external to all of this.
I have been informed that INAC made a presentation to this committee at the start of these hearings. Just because Saskatchewan has an interest in pursuing the development of a regulatory regime and INAC has made a submission does not mean we agree with the bill in its current form and the manner of its introduction in the parliamentary process. The implications are too significant to ignore when we talk about resources and funding to maintain and sustain water delivery systems in First Nations communities.
I want to be very clear: We do not agree with the bill. There is an issue of the bill being tied to the First Nations water action plan processes. The proposal process regarding the development of regulations is also tied to Bill S-11. If the bill dies and gets delayed, so does the process of developing regulations. Any bill and any development of regulations need to be independent, not tied to any First Nations water action plan process.
Any bill that comes about will require regulations. These regulations need to be developed in the regions by and for First Nations. Our proposal to INAC speaks to the structure we intend to establish in order to create a Saskatchewan regulatory regime by First Nations.
In June 2010, we had an FSIN all-chiefs assembly. The chiefs rejected the bill on the basis of lack of consultation. Both First Nations and governments need to use the United Nations Declaration on the Rights of Indigenous Peoples to strengthen our relationship as we go forward together. Redrafting the bill together can be a starting point.
If the government is going to make a chief and council responsible and liable for the delivery of water in communities, it must involve them in the development of legislation and regulations as part of the consultation.
In Saskatchewan, we have had a number of communities under boil-water advisories, with orders going on for years in some cases — never mind days, weeks or months. As of February 4, 2011, we have had 16 advisories involving 13 communities. We seem to be around 13 to 18 advisory orders at any given time, and we update that statistic often. This is not acceptable. Imagine the people living in homes under those conditions, piled on top of inadequate housing, mould, chronic illnesses, poverty, low employment and welfare. I am not sensationalizing the situation. That is a reality in the communities; it is very real.
Had we continued to work together as a result of the 2006 expert panel on water, I believe we would now be in a much better place with respect to safe drinking water. The option was there for the federal government to work with First Nations in crafting a bill for safe drinking water, truly enabling First Nations to access safe drinking water.
Had we continued consultation using the findings of the panel, we would have a bill that would be much more agreeable to First Nations than this bill. One example of a current situation is the Circuit Rider Program, which was established in partnership between the Province of Saskatchewan and INAC on behalf of First Nations. There are benefits to this program, but I will add that there are misgivings as well.
One of the things the program is intended to provide is training and expertise to the operations in the communities, and there are some benefits to that. That is obvious in the situation of a junior operator or one who is just starting out in the field. However, the shortcomings appear when there is an operator who has been around for a while in communities where the technologies that are in operation are not used in non-First Nations communities. Some First Nations communities utilize membrane technology in the water treatment process, and those are not used elsewhere. A Circuit Rider trainee for the province may come out to one of those communities and have no knowledge of the technology, meaning that roles can be reversed. A provincial person will be learning from the First Nations operator instead of the other way around. As well, a First Nations person may be a level 2 operator and the provincial person may be a level 1 operator. The problem is self-evident.
Another misgiving is that when the provincial person comes to the reserve and does their work, they go back to the office and send an invoice to INAC and they pay. Nothing in this process allows First Nations to sign off and say that the work being invoiced benefited the community.
That concludes my presentation to the committee.
Michael Mitchell, Grand Chief, Mohawk Council of Akwesasne:
[The witness spoke in his native language.]
Our delegation is from the Mohawk territory of Akwesasne. We are here on behalf of the Mohawks of Akwesasne as the elected Mohawk Council of Akwesasne. Akwesasne is one of the largest First Nations communities in Canada, with a population of 18,000, of which 11,000 are on our membership roll.
The territory of Akwesasne is artificially divided by an international boundary between Canada and the United States, as well as the interprovincial border between Ontario and Quebec. Indian and Northern Affairs Canada has categorized the territory of Akwesasne as Reserve No. 15 Quebec and Reserve No. 59 Ontario, and completely ignores a portion of our territory categorized as within New York State. The complexity of our geographic location has forced us to develop creative solutions, as the people of Akwesasne still consider themselves one family, in one community.
In the 1960s, Akwesasne was considered one of the most polluted communities in North America. It was polluted by the neighbouring industries. Over the past 20 years, the Mohawk Council of Akwesasne, MCA, has steadily advanced its capabilities and capacity to protect the environment and its peoples. For the past 18 years, MCA's Departments of Technical Services, Environment, Health and the environmental program have looked at best practices and standards to ensure the people have access to safe drinking water. Those responsible for effluent management have worked in partnership with outside agencies such as Health Canada and INAC to maintain and enforce diligent water testing.
Certification of water treatment operators is the utmost standard and has been applied consistently for 15 years. Currently, the Department of Technical Services employs one manager with a Class 4 designation and standing as a professional engineer; two Class 3 operators; one Class 2 operator; two Class 1 operators; two operators currently in training.
Observations: Akwesasne has been approached by INAC to participate as one of the pilot communities in a newly proposed legislative framework development initiative currently under consideration. The Mohawk Council of Akwesasne is in the midst of negotiating a nation-building agreement for self-government and an alliance and sectoral agreement with Canada that would recognize Akwesasne's jurisdiction over water and waste water management and would remove Akwesasne lands from management under the Indian Act. The multi-jurisdictional nature of Akwesasne lands and waterways in Ontario, Quebec and New York State makes the problems associated with differing standards, regimes and enforcement mechanisms more pronounced.
Infrastructure needs of First Nations will need to be addressed and government envelopes will need to be increased to facilitate compliance to the regulatory regime being proposed. Bill S-11 fails to recognize the jurisdiction of First Nations in water and waste water management and standards. It also fails to offer an alternative approach of any delegated management role for First Nations.
An alternative approach would provide a greater role for First Nations with real responsibility and would build capacity, as has been done in other areas such as health transfers. Provincial involvement in First Nations territories has been mutually agreed upon and has the potential for conflict.
Conclusions: It is our intention to seek an exemption to Bill S-11 due to the fact that this bill in its current form does not adequately address the unique multi-jurisdictional situation in Akwesasne. At this time, Akwesasne intends on exercising jurisdiction over drinking water standards. However, due to the development and transition period, Akwesasne would like to continue to strive to meet or beat existing drinking water protocols and best practices. Akwesasne intends to continue to work with Indian and Northern Affairs Canada to build an effective system for regulated safe drinking water standards within a community. This would allow the development of a regulatory model that would address matters such as governance, monitoring, enforcement, appeal mechanisms, reporting, emergency planning and source water protection. Akwesasne is concerned that Bill S-11 in its current form will impact First Nations rights and jurisdiction. As such, Akwesasne supports the presentations and submissions provided by the Chiefs of Ontario and the Assembly of First Nations.
Bob Howsam, Executive Director, Ontario First Nations Technical Services Corporation: Thank you for the invitation, senators. When I spoke to your analysts about what you wanted to hear from the Ontario First Nations Technical Services Corporation, she indicated that you wanted to hear from a technical organization about the implementation challenges of regulations on the ground. I thought it best to let someone who has actually operated a plant and is our senior trainer do the talking, so I will turn it over to Jason Henry.
Jason Henry, Senior Circuit Rider Trainer, Ontario First Nations Technical Services Corporation:
[The witness spoke in his native language.]
Mr. Chair, honourable senators, thank you for the warm welcome and for inviting the Ontario First Nations Technical Services Corporation, OFNTSC, to attend the Standing Senate Committee on Aboriginal Peoples regarding Bill S-11 and for giving us the opportunity to provide our technical perspective and highlight some of the challenges First Nations encounter when delivering safe drinking water. Please allow me to confirm that our presentation is from the technical perspective only and will not supersede the perspectives of the Assembly of First Nations, Chiefs of Ontario or Ontario First Nations leaders regarding consultation, financial issues or Aboriginal land and treaty rights.
In cooperation with Ontario First Nations communities and affiliated First Nation tribal council technical units, the OFNTSC delivers quality advice on infrastructure and provides operator training to address the evolving needs of First Nations. This is carried out through our water and waste water quality assurance and operator training, environmental services, project planning and development, fire safety and protection, and housing infrastructure programs.
This presentation will highlight the current issues and background information, summarize the current realities and recommend options that will allow First Nations to maintain the delivery of safe drinking water.
Bill S-11 defines the roles and responsibilities of both First Nations and government. There are critical elements that will need to support a First Nation, such as the transfer of risk, funding and capacity development needs. As First Nations in Ontario presently strive to apply the provincial Safe Drinking Water Act and its regulations, First Nations water operations and support staff have become very aware of the risks of operating under-resourced, non-compliant facilities.
The Ontario Drinking Water Quality Management System, DWQMS, provides detailed operational and funding templates for both small and large drinking water systems in the province. These templates can be applied to First Nation sites. However, the resources to support these templates are currently not available.
With the introduction of Bill S-11, there is a perception that First Nations cannot manage their facilities, and rather than provide First Nations with proper resources and funding to operate them, there is a perception that enforcement and penalties may be more suitable. However, if we were to invest the time needed to standardize the design and construction applications and advance operational training, a different working environment can be achieved. The ongoing development of the legislation suggests that a system that relies on enforcement and penalties may be the solution. Due to the large investment by government and these communities, the risk and liabilities must continue to be shared by government and First Nations.
The elements of Bill S-11 and the subsequent regulations will define these gaps and the critical roles and responsibilities of delivering safe drinking water. First Nations have a desire to be part of the solution of delivering clean drinking water to their communities. However, the development of these solutions will not be achieved by transferring this initiative to the existing First Nation programming structure. The allocation of additional resources and funding are essential to the sharing of responsibilities to delivering safe drinking water to First Nations. The current trend to expand INAC protocols for central and decentralized systems indicates that First Nations continue to reference design standards and best practices that reflect Ontario regulations. Despite protecting funding reductions, First Nations hope that budgetary restrictions for capital investment will not continue to be the primary factor for future projects.
In Ontario, the geographic locations, populations and cultural uniqueness among First Nations add to the challenges that will need to be addressed in the development of a regulatory framework derived by First Nations.
Upon reviewing the 2010-11 INAC First Nations Infrastructure Investment Plan, First Nations capital funding reductions are projected for the next five years from a high of $274 million this fiscal year to $145 million in 2014-15. A particular concern is the planned expiration of the First Nations Water and Wastewater Action Plan, or FNWAP, in March of next year.
FNWAP currently provides additional funding for First Nation water programs such as additional operation and maintenance funding, the Circuit Rider Training Program, the Safe Water Operations Program, the Operator Training Subsidy and 24-hour emergency support services. With the potential implementation of the safe drinking water regulations for First Nations and the projected funding reductions, the resources to support this initiative will have to be implemented in an environment that will be further stretched and under-resourced.
With the completion of the National Engineering Assessment, First Nations await the release of the final report findings and recommendations. The consultant's assessment of First Nations infrastructure will not reveal any unknown issues but will confirm the magnitude of the needs. The findings will also be a useful tool to define the ongoing training opportunities and benchmarks for future capital investment and promote strategic growth in First Nations.
The OFNTSC Circuit Rider Training Program is one of the leading First Nation operator training programs and places primary focus on assessment, identification of gaps and timely response to First Nation needs. Through the delivery of this program, it is continually evident that the needs of First Nations water operations are unique and evolving. Our program has been well-received due to our ability to react and adapt to those needs.
Our training program continues to invest in the piloting of several operational support initiatives in order to build a structure that will support First Nations in managing and supporting their own systems. In addition to the Circuit Rider Training Program, the OFNTSC is finalizing an infrastructure needs assessment. The information collected will allow First Nations to forecast and plan their community development.
The current realities in First Nations in Ontario are that First Nations continue to encourage their membership to become professionals or attract professionals, but success is limited due to a history of programs and initiatives that were not fully resourced when implemented. This negative trend extends to the operations and management programs of First Nations and an understanding of how to resolve these issues, but they do not have the resources necessary to troubleshoot. This constant cycle of under-resourced programs has extended to the poor maintenance and operational practices in First Nations buildings and infrastructure.
Also, the high-level governance and community-based issues that First Nations leadership are expected to respond to every day create an environment where daily crisis issues become the priority. The maintenance and upkeep of these facilities then becomes the lesser priority and gives way to health and social priorities within the communities. Due to limited administration and the management structure in the communities, First Nations leadership has to assume some of these roles so that essential services can continue.
Typically, only short-term relief has been provided to First Nations through additional funding programs. This provides only temporary support and does not encourage community self-sufficiency. Despite good intentions, it does not prevent the burnout that will occur eventually. The development and ongoing investment of highly skilled technical advisers is critical to the elimination of these cyclical occurrences.
The sustainability of water quality in First Nations is dependent on the investment in appropriate infrastructure and on the use of industry standards and best practices for the upgrading and construction of new facilities. We can reverse the current trend, but only with the allocation of additional funding will First Nations be able to meet these benchmarks.
The continued investment in existing First Nations organizations and their professional technical advisory services must be continued with long-term sustainability and 10-year plan benchmarks. A joint partnership between First Nations and government, possibly through a First Nations technical working group, will complement the government's next step regarding proposed legislation. First Nations operators and technical advisers generally do an excellent job of delivering potable water to their communities in spite of significant challenges. Solutions will only come with more and consistent funding, continued training and assessment, and better maintenance in parallel with the completion of meaningful consultation and accommodation processes that will support First Nations-generated regulatory framework and success.
Senator Dallaire: Chief Mitchell, today we meet in a friendlier atmosphere than the one in which we met in 1990. I am glad that we are able to meet in a milieu such as this.
It has been mentioned several times by different chiefs and leaders that Canada signed the convention on Aboriginal Peoples. As well, there is an international reference in respect of the responsibility to Aboriginal peoples. The government finally signed that four years after so many other countries signed, although we led the charge on creating that convention. However, we have not put it into law. Canada signed the convention but has not enacted it in the laws of our nation. There it sits, much like the optional protocol on children's rights that Canada signed in 2000 and has not put into law. It might be a useful reference to moral standing, but it has no legal standing. I hope that someone will pursue this and that the government will put it into law.
Another one is more specific to this issue: the UN convention on the human right to water, which this government has not signed. Forgive me for saying this, but when I read Bill S-11, I wonder whether there might be some hidden agenda to meet the requirements of safe water. Is there truly goodwill in wanting to advance a solution for clean, safe water and sustain that into the future?
Mr. Whitefish: It is true that Canada is dragging its feet in acknowledging the United Nations Declaration on the Rights of Indigenous Peoples, which is very unfortunate at this time.
On your other question about Bill S-11, our main concern in Saskatchewan is the lack of consultation. We are tired of federal government bureaucrats dictating, writing and drafting proposed legislation that they think is good for First Nations. We want to draft our own legislation on what is good for First Nations from our First Nations' perspective, from our First Nations territories. We see the issues with drinking water in First Nations communities. Of course, how are we to maintain infrastructure and regulate something if we have not begun to address the level of standards? It is very hard to regulate something if you do not have standards in place; and, of course, those standards have to be up to par. Capital dollars must include infrastructure to address those issues before regulation can begin.
Our position in Saskatchewan is that we have to hold this bill at bay so we can go back and start in the communities to draft a bill that comes directly from First Nations and addresses the entire issue.
Senator Dallaire: Mr. Henry, you presented a succinct, clear, logical and convincing presentation on the technical aspects. I bring to your attention clause 4(1)(q), which speaks to ownership of the facilities. It states:
4(1) The regulations may
(q) deem a first nation, for the purposes of this Act, to be the owner of a drinking water system or waste water system located on its first nation lands . . . .
What does "to be the owner" mean to you? Does it mean that you will take over some derelict system that the federal government used to run? Does it mean that you will have to create and build your own system? Does it mean that you simply have to sustain that system? What does "ownership" mean in this bill?
Mr. Henry: In my mind, and purely from an operational standpoint, in Ontario municipalities the owners of a system would the mayor and council of a town. The operating authority would be someone like the Ontario Clean Water Agency or their own public utilities commission or a consultant on First Nations. I am not sure where the ownership issue would lie, so I would have to refer it to Mr. Howsam or to one of the chiefs. As an operator, that is how it is today in Ontario.
Mr. Howsam: In advance of this bill passing, the current ownership is unclear. Certainly, the chief and council are responsible for what goes on within their community, but the money for the plant is provided by the federal government through Indian and Northern Affairs Canada. The operations and maintenance budget is supplied through that and/or through user fees.
I do not pretend to speak for leadership, but the concern is that this is an attempt to solidify the liability with chief and council as opposed to a shared ownership and, therefore, shared liability.
Senator Dallaire: Can it be legal for the bill to state that you would be the owner while the government would be the provider of the funds to keep the thing standing, let alone operating? Is that ethically right?
Mr. Howsam: I cannot speak to the legal aspects of it, but it is challenging from an ethical point of view. Once again, I would defer to the leadership on this question.
Mr. Henry: Think about this in terms of a rental car. The rental agency owns the car, and we are just able to use it. Currently, the federal government partially funds these facilities and First Nations are left to operate them. Ownership is a grey area.
Senator Dallaire: Does anyone else want to say anything on that?
Mr. Mitchell: We have two water plants in Akwesasne. For the past 15 to 20 years, we have taken firsthand involvement in the operations, delivery of services, setting regulations and getting people to participate.
We said a while ago that to run and operate the facility, we would train our own people; they are fully involved. I listed their credentials. In terms of obtaining funds to build it, it is just a system that we have been under for a long time.
Akwesasne is negotiating a self-government process. We look forward to the day when we will own it and take care of it and be responsible for it.
They label us as a progressive community. We do not know what that is supposed to mean. All we are concerned about is the ownership. We welcome it. We will tackle the challenge and train our people on the delivery of the services and get them to participate in something that is ours.
All I can share with you is that we have had successes.
Senator Dallaire: Your funding comes from where?
Mr. Mitchell: The Department of Indian Affairs.
The Chair: You made reference, grand chief, to a pilot project you are working on with INAC at the present time. Did I hear you correctly?
Mr. Mitchell: Yes.
Jay Benedict, Director, Department of Technical Services, Mohawk Council of Akwesasne: I can speak to that.
Mr. Benedict: The water and waste water management program is within our department.
We are currently speaking with the department and actually trying to establish our roles on how we move forward and the support that the department can provide us. We would like to begin by holding what we are calling a think tank to look at surrounding jurisdictions like New York State, their standards, regulations and philosophy behind the laws that govern their drinking weather, and to do the same for Ontario and Quebec.
Those surrounding jurisdictions, we think, have good aspects to their regimes. We would like to assess and evaluate them. It is a bit early to tell, but perhaps we can cherry-pick and customize standards and regulations that would work in Akwesasne. As the grand chief said, our community is divided by the border.
Currently, the community members do not understand why the southern portion of our community abides by one standard and the northern portion of our community another, and you can see the water intakes. Our community does not understand why we are using two different standards. That makes sense from that perspective.
We are looking for the ability to go through that process and perhaps come up with a standard set of regulations that will apply to the entire community.
Senator Brazeau: Chief Whitefish, would you agree that INAC has been consulting with respect to water and waste water since 2006?
Mr. Whitefish: Since 2006, work has been done in terms of providing safe water. What we are referring to today is Bill S-11, and there has been no consultation with First Nations on drafting this bill.
Senator Brazeau: Since 2006, has INAC approached the FSIN with respect to any discussion surrounding Bill S-11?
Mr. Whitefish: I have not been around the FSIN that long, but there has been work under lands and resources with INAC. From that, we have drafted our own Saskatchewan position on the issue of safe drinking water for First Nations. That matter is separate from what we are discussing today.
Senator Brazeau: Since 2006, has the FSIN received funding from INAC to talk about water systems and waste water management?
Mr. Whitefish: We have not received any funding for moving forward on the water issue.
Senator Brazeau: My next question is for Mr. Henry. Thank you for your presentation. I agree with my colleague Senator Dallaire. It was very succinct, precise and concise.
Given the expertise of the corporation that you work for and the important work that you do, if this bill were to pass, would you see a role for your corporation to assist the Government of Canada and other First Nations in developing, enforcing and monitoring the regulations?
Mr. Howsam: We have been approached by Chiefs of Ontario, a regional political body, to work in the development of regulations for First Nations water legislation. I certainly see that there will probably be a role in the future, which is the express desire of the political leadership.
My reading of the bill is that it talks more about capital facilities as opposed to operations, maintenance and training, which are some of the points the professor made earlier. I certainly think there would be a role for us, yes.
Mr. Henry: In my opinion, if this legislation goes forward, the corporation will have a large role to play. . Currently, we are working on operations that will aid First Nations in meeting the needs of this proposal.
Being the largest and most advanced First Nation in Canada in the areas of water and waste water, Akwesasne can still attest to difficulties. They have struggles daily.
In the areas of training and operational assistance, we are also working on operator profiling, testing the level of their understanding and knowledge in the areas of water and waste water and creating real-time training plans based on what they know and do not know, as well as site assessments and remedial action plans to bring the plants up to standard.
To answer, yes, I do see a big part in that.
Senator Brazeau: I understand the challenges and the jurisdictional and border issues with respect to the community in Akwesasne. However, the expert panel basically had three options: federal regulations, looking at incorporating provincial regulations or a hybrid of looking at different jurisdictions. If passed, this legislation would allow any community to develop regulations with the Government of Canada, while looking at all these transcending regulations depending on jurisdiction. This would be an opportunity for your community, and every other community, that would allow that to happen.
Senator Dyck: We have heard repeatedly from Aboriginal organizations across the country that they are not happy or satisfied with this bill. Apparently, the government is saying it is willing to make amendments to modify it.
To your knowledge, has anyone been approached with respect to amendments? Also, if the bill were to be amended, should not the First Nation governments and leaders be involved in making those amendments?
Mr. Whitefish: From our perspective, we in Saskatchewan think we ought to set aside the bill. We should start over. We should start talking about First Nations infrastructure and what we have currently. We need to bring the standards up to an acceptable level and then begin to work on regulation of the system.
The other important thing is to work region by region. We all have unique situations. In Saskatchewan, we have the Far North as well. Every province has issues with isolation and related concerns.
The other thing is infrastructure that requires maintenance and upkeep, and having a backup plan in some instances. In Saskatchewan, a water treatment plant went up in flames. Many things occurred, and there was a health issue when that happened. The delivery of water became very problematic because there was no backup plan.
We need to work from the ground up in terms of establishing a regulatory regime that will suffice. It is very important to take those steps, region by region, to ensure that each community is considered with regard to drafting a new and informed bill.
Senator Dyck: Does anyone else have a comment to make?
Mr. Mitchell: At times, it is hard for us to speak nationally or regionally because Akwesasne is such a unique and complicated geographic situation. We try to do everything we can to protect our interests, involvement, responsibility and jurisdiction.
When other First Nations ask us about some of our successes, part of it is our relationship with Canada. In 2000, we signed a political protocol on jurisdiction with the federal government. It was signed with Her Majesty in the right of Canada as represented by the Minister of Indian Affairs and Northern Development. I will quote three passages from the agreement: "Whereas the Mohawk Council of Akwesasne is the community government for the Mohawks of Akwesasne that has been mandated to seek and identify areas where Akwesasne may exercise true negotiations, expanded jurisdiction and assume greater control and responsibility for the delivery of programs and services to the people of Akwesasne; whereas the parties agree that the Mohawk people of Akwesasne have experienced ongoing difficulties directly attributed to the location of the Ontario/Quebec interprovincial boundary and the Canada/United States international border within the Mohawk territory of Akwesasne; whereas the parties here agree to work together under this political protocol to support the social and economic development of the community of Akwesasne and to negotiate arrangements to facilitate the exercise of jurisdiction by the Mohawk Council of Akwesasne as agreed to by the parties . . . ." That gave us some leeway to get in there and get involved. We do not want to be silent parties until it is finished. When this starts, we get in and talk about the expertise and ability we have and how we want to see the program start from the ground up. We insist that we get in from the beginning, not at the end of the process.
With respect to the finished product, they say there was consultation. Indian Affairs would be the first to admit, in our situation, that we should have complete ownership and jurisdiction in this area because we work cooperatively with Indian Affairs and Health Canada and they ask for our advice. They say, "How would you do this?" They will come back and ask if we have room for other First Nations to come to Akwesasne to train. The gentleman sitting right here is regularly on loan to Ontario First Nations Technical Services Corporation, and we send other people to share and help build capacity for other First Nations.
The only thing I would say that can be regional or national in nature is that we try to do our share to help other First Nations or help Canada, but we also want them to see where we come from. If we can get a partnership with them, we are the better for it. That is our objective.
Senator Dallaire: How have you done with Bill S-11? How much have you been engaged in using the extraordinary political work you have done in the drafting of Bill S-11?
Mr. Mitchell: We have had very little involvement.
Senator Dallaire: That makes no sense, does it? If you built such an extraordinary link with INAC, why would they produce that without you being significantly engaged?
Mr. Mitchell: We gave our expertise and involvement to the department regarding questions about how we would do it as it pertains to us. Given what I said earlier, the message would be the same concerning Bill S-11. No, we were not asked to be involved when it started. They had forums.
I have been grand chief for the majority of the last 26 years. If I was not the grand chief, then I was the chief. I encourage our council and our community to get out there and get involved in anything we take an interest in that might affect First Nations or ourselves. Some of you will know that when you have standing committee hearings on something that involves us, we will be there to give our point of view. However, we did not have a great involvement on this matter.
Senator Sibbeston: We are faced with what to do with Bill S-11. It is a bill that deals with the regulation of water and the disposal of sewage. Some clauses deal with the Governor-in-Council making regulations on the advice of the Minister of Indian Affairs or the Minister of Health. Some deal with the cabinet making recommendations regarding water and disposal of sewage in First Nations communities. Others deal with limits on liability defences and immunities.
You gentlemen and your people deal with water and sewage issues on a day-to-day basis. Will you be adversely affected by this bill, or will you just go on doing your work, trying to do the best job you can to provide good, safe drinking water for your people?
When you read this bill, are you concerned about the extent of the power the federal government has over First Nations' water? If this bill passes, do you think your work will in any way be impeded or adversely affected?
Mr. Henry: We will keep on working and forging ahead with our work on First Nation water and waste water facilities. However, I believe there will be an initial adverse effect if the legislation goes forward and regulations are developed. That will happen due to the resource gap regarding underfunded facilities, under-paid operators and untrained operators.
I will share a story. I was speaking with an operator two years ago about training. His was in a community next to mine and I offered him training for free. I told him, "You are running a water facility and you are under a boil-water order; do you want some free training?" He said, "Listen, Jason: If I was trained, I would know something and I would be responsible. I do not want to be responsible. I do not get paid enough to be responsible for this water, truly, so please do not offer me training again."
I feel that if these laws were in place and our operators were not equipped to deal with them, it would make our job very difficult. Operators would fear the liability. They might give up their jobs and drive school buses instead, which is a common trend in First Nation communities already.
Mr. Howsam: Another focus of the legislation is around penalties and dealing with situations of noncompliance in relation to whatever the regulations ultimately will be. Presumably, it gives the government the ability to bring in non- First Nation companies to run the water systems. That will only exacerbate the situation of lack of training, lack of young people getting involved, et cetera. The potential is for things to become worse, not better.
Mr. Mitchell: Our involvement starts with the Great Lakes international water commission. It deals with the Great Lakes down to the St. Lawrence River, which passes through our territory. We sit on that commission with other water experts. Our thoughts, concerns and advice are valued by authorities from the U.S. We complained a lot because most of our pollution was coming from industries on the American side. We fought against that throughout the 1960s and 1970s, right up to the 1980s. Now our advice is valued.
Native Americans have greater involvement in terms of having jurisdiction than we have here. They have greater ownership and are more widely consulted. They sit with equals from the onset. In Canada, there is still the mindset that rules must be made on behalf of First Nations, the father and son attitude.
When we become full partners, things like this will get off the ground much more easily. Some of us step up to give our views, but then we find out that it does not mean much because of the system that is in place. We want to have greater involvement and a greater say, and we also want to take ownership.
Mr. Whitefish: My colleague raised the issue of the environment. We have the same issue in Saskatchewan. Clause 3 speaks about the environment and contaminated water. It is very difficult for First Nations to protect their water from outside contaminants. We have the tar sands to the west of us in Alberta, and, of course, wind blows from the west. Many scientific studies show that Northern Saskatchewan is being affected by acid rain. Lake Athabasca is being affected as well. It would be very difficult for chief and council to address the issue of contamination or safe water through regulations under Bill S-11.
The Chair: I thank all of you for your excellent presentations this morning. We look forward to working with you in the future. Keep up the good work of trying to bring safe drinking water not only to First Nations but to everyone in the country.
Senator Sibbeston: Do not lose hope.
The Chair: Yes. There is light at the end of the tunnel.
(The committee adjourned.)