Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 19 - Evidence - March 2, 2011
OTTAWA, Wednesday, March 2, 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: 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 the World Wide Web.
I am Gerry St. Germain from British Columbia, and it is my honour to chair this wonderful committee. The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally. A number of reports have highlighted key challenges in the delivery of safe drinking water in First Nations communities, including aging water systems, certification and training of operators, lack of independent resources to properly fund system operations and maintenance, and the lack of clarity with regard to roles and responsibilities.
This evening 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 have a busy evening ahead, as we will be hearing from seven organizations. Before hearing our witnesses, I would like to introduce the members of the committee here this evening.
Present are Senator Sibbeston from the Northwest Territories; Senator Dyck from Saskatchewan, who is the deputy chair of this committee; Senator Campbell from British Columbia; Senator Tommy Banks from Alberta; Senator Dallaire from Quebec; Senator Greene from Nova Scotia; Senator Poirier from New Brunswick; Senator Stewart Olsen from New Brunswick; Senator Greene Raine from British Columbia; Senator Brazeau from Quebec, and Senator Demers from Quebec.
Members of the committee, please join me in welcoming our first panel, which is comprised of three organizations. From the Centre for Indigenous Environmental Resources, we have Merrell-Anne Phare, Executive Director and Legal Counsel; from the Federation of Saskatchewan Indian Nations, Jim Bruce, member, and Nancy Goucher, Program Coordinator; and from the First Nations of Alberta Technical Services Advisory Group, Vaughn Paul, Chief Executive Officer, and Clayton Leonard, Legal Counsel.
Merrell-Ann Phare, Executive Director and Legal Counsel, Centre for Indigenous Environmental Resources: The Centre for Indigenous Environmental Resources is a national charitable non-political First Nations organization that was created by chiefs in 1994. We work on 20 to 30 environmental projects with First Nations across the country every year dealing with climate change, lands, waters, biodiversity and sustainability.
I have worked with the Assembly of First Nations as a legal adviser on water for about five years, working closely on the drinking water file. I was an invited presenter to the Expert Panel on Safe Drinking Water for First Nations and was referenced in their final report.
To protect drinking water, you need an act that is not enabling framework legislation. The bottom line is that you must set out the actual regime. Enabling legislation is great when you want to do things that are nice, maybe beneficial, but not critical, immediate or mandatory in nature. If you think about the Species at Risk Act, the Canadian Environmental Assessment Act, the Fisheries Act, the Criminal Code or the Income Tax Act, it becomes clear that when we care about something we create laws that make it clear what must, will, can, and cannot be done. This is mandatory legislation and is effective for the goals. Critical aspects of our society and our environment are meant to be protected, rules followed, and they are not optional. I hope we all agree that in this country safe drinking water fits into this "not optional" category.
On the financing issue, when you create mandatory legislation, you create the impetus for financing because, at the very minimum, you have created liability for not financing. There is a ticking clock; there are obligations that the legislation has created that must be met by the federal government. For example, there are reports to cabinet.
Right now, there is limited or no liability for not financing because what governs the decision to finance safe water is INAC's internal decision-making risk assessment framework or the national engineering assessment, of which you have heard. Because there is no law that mandates that these deplorable situations not be allowed to persist and that water quality standards be met, Canada addresses each situation guided by the risk assessment. "We will look at the resources we have available and approach the higher risk first," is the testimony from Christine Cram, and this is why you have also heard from First Nations, some of whom have been waiting eight years or longer. I know of First Nations who have been waiting over 10 years for a water treatment facility. A mandatory law would change that, but the enabling law that you have before you would not change that.
An enabling law allows you to say that you have a law, but you still do not have standards or anything requiring you to provide safe drinking water to people. With enabling legislation such as this, you can wait as long as you want. In fact, you never have to do anything at all under this law. You might be able to respond to critics who say there is a regulatory gap by showing them the paper that the law is written on, but you will not be able to respond to critics who say to you, "Show me the safe drinking water that has resulted from the legislation."
If you want to provide safe drinking water, you need a regime enshrined in law with at least these characteristics. The bill needs to set out the water quality standards and create the actual enforcement regime. The bill must provide a non-derogation clause, not a derogation clause, as this one does and have a time period for implementation. It must provide a review period clause, for example, as provided in the Canadian Environmental Protection Act and the Canadian Environmental Assessment Act, and then provide regulation-making powers that are specifically and directed only at achieving the requirements of the law.
This is what people have been saying to you about needing the government to show leadership and set a vision with this legislation. This is what is needed to provide safe drinking water. Let me be clear: The bill before you cannot be amended enough to fix its flaws; they are fatal. You need a new bill.
This is where rights and consultation come in. With effective legislation, there is a chance that First Nation rights may be impacted by that legislation because it needs to and sets out powers and obligations regarding water. The lawyer from the Department of Justice who was here before you earlier said that he could see already that the part of the legislation that deals with source water protection could impact First Nation rights. In his testimony on February 2, he said:
To the extent that you deal with limiting the use of land, yes, it would probably be considered to affect the Aboriginal or treaty right related to the use of their own lands.
As an aside, the fact that the Department of Justice already knows that rights may be impacted shows why consultation and accommodation of First Nation concerns, as set out by the Supreme Court of Canada, should have occurred with rights holders already.
Here are other examples of First Nation rights that might be impacted: water rights regarding domestic, commercial, navigation and other uses; rights to govern and make decisions regarding water decision making; cultural and spiritual rights to water; environmental protection rights; land use rights. To avoid these impacts as much as possible, the Supreme Court says you should take a cooperative approach. That is what is coming out of the Supreme Court in their Aboriginal rights cases — negotiate, is what they are saying.
Here, this means joint drafting of the legislation by First Nations and INAC and all their lawyers. As an example, the Northwest Territories did this with their Species at Risk Act. It took two years and INAC paid for it. There was a committee of First Nations, Metis and Inuvialuit that did the work, and the Department of Justice was not in control of the pen; everyone around the table was in control of the pen. This jurisdiction has also done this with their approach on their water strategy, which they finished only a few months ago.
The collaborative negotiation process avoids rights infringements altogether. That is the benefit of doing it that way. When you adopt this approach, it is not about consultation any longer; it is actually about rights implementation, negotiation, developing capacity, defining what that means, identifying resources and everything else that can happen when governments collaborate to achieve a common goal. This can be done, and you have heard INAC acknowledge that they are prepared to do this collaborative approach. The question is, when and about what. Collaboration should be now regarding creating effective legislation, not later regarding regulations.
I presented to the Expert Panel on Safe Drinking Water for First Nations on the need for a staged five- to eight-year process that moved in the direction of recognizing First Nation rights and governance in water and water management. It was about meeting short-term needs for immediate protection of health and safety and the environment while moving toward a long-term politically and legally acceptable solution. This time frame, by the way, is within the 10- year time frame of the national engineering assessment, which will happen anyway.
Here, briefly, is what I presented. I talked about Phase 1 being a one- to two-year process looking at immediate First Nation involvement in all critical core aspects of safe drinking water, some of which they are already involved in, but an comprehensive way to address short-term immediate needs. At the same time, Phase 2 begins a medium term process of one to four years that is the creation of an intergovernmental political process, First Nation, federal and provincial, with the goal of reaching a national accord or framework agreement on safe drinking water for First Nations. I called that "the bridge to self-government." It would focus on jurisdiction, program creation and delivery, institutional development, and strategy and policy decisions.
Phase 3 is the longer-term response on a five- to eight-year horizon. The goal of this phase is full implementation of First Nation jurisdictional responsibility for the provision of safe drinking water to their members based on First Nation "Walkertonesque" principles, but those would be defined in the process. In this phase, INAC discharges its fiduciary obligation by providing resources.
This model is tried and true. It is the approach recently used to transfer all authority and responsibility for all aspects of water management to the Navajo Nation in the United States. We could learn a great deal from that example.
Since that time, I and others have worked with the AFN on developing a triad structure that would have regulatory financial and operational responsibilities. We have worked on scoping out a First Nation water commission that would have regulatory enforcement and accountability responsibilities; a First Nation water trust that would deal with the financial aspects of safe drinking water. It would have nested operating authorities from the national down to the regional. The AFN in partnership with others has been working on this and they have done quite a bit of work on the operating authority side. This was based upon an assumption of First Nations and federal legal authorities, and envisioned partnerships with provinces and municipalities chosen by the First Nation. These kinds of things could be created by drafting a statute together. It could be codified in federal law and customary law in partnership. INAC has known about this approach because they funded the first stage of the analysis in 2007.
The expert panel saw the benefits to this approach because it would give the opportunity to draft a legal statute that raises the bar for the nation as a whole.
. . . The federal government could provide a regulatory framework that was better than any now in existence, a matter of pride for First Nations and for the federal government in its presentation of Canada internationally.
The benefits of this process include collaboration with First Nations directly and consistently to build an effective regime that is not about consultation in that context. This process would produce reconciliation, not rights infringement, which the Supreme Court of Canada says is the goal that we face as a country. It would jointly plan to build capacity. It would explore additional non-legislative options like best practices approaches. It would achieve a rational structure to ensure safe drinking water for First Nations, which is the actual goal, or should be the goal.
Jim Bruce, member, Forum for Leadership on Water: Honourable senators, FLOW is the Forum for Leadership on Water. We are an independent collaborative of water experts from across Canada. We encourage government action to protect our critical fresh water resources. Many of the members, as I have done, have spent a long career dealing with water issues in Canada and abroad. We believe that all levels of government in Canada must work together to address effectively the current and emerging threats to fresh water security. We need legislation that protects drinking water quality for First Nations and for all Canadians, but we think that Bill S-11, in its present form, would be a step backward. Why do we think that?
The bill relates to two of our priority issues outlined in our foundational document called, Changing the Flow: A Blueprint for Federal Action on Freshwater. First, we are concerned about securing safe drinking water for all Canadians; and second, we are concerned with protecting water rights for indigenous people. We evaluated Bill S-11 from two perspectives: first, as water policy; and second, as a potential for increasing First Nations' access to safe drinking water. From both perspectives, Bill S-11 is cause for serious concern.
At its broadest level, the proposed legislation would result in the Government of Canada failing to recognize its responsibilities for water issues that are clearly within its jurisdiction and are of national significance. A closer look reveals major concerns with the details of the bill, including possible infringements of First Nation rights, lack of collaboration and the absence of a plan or vision to provide resources and support to address water infrastructure operation and maintenance issues.
As you have heard a lot about the details of the bill in the hearings so far, I will focus primarily on what Bill S-11 presents for the management of Canada's water nationally.
The first thing is that unlike other federated jurisdictions, such as the United States and the European Union, Canada does not have national legally binding drinking water standards. Canada has water guidelines only. The absence of such standards has led to a patchwork of fragmented policies across Canada, which means that the level of protection for your drinking water depends on where you live. Bill S-11 proposes to entrench this fragmentation further, leaving First Nations with different levels of security across the country. To illustrate how fragmented drinking water policies are across the country, I remind you that only four provinces have fully adopted the national drinking water guidelines. Monitoring requirements vary widely from province to province. Few provinces have source water protection regulations, and most provinces still do not require mandatory reporting on performance of water systems.
Many studies have shown that Canada's situation severely limits our ability to manage and develop strong environmental legislation, while many other federated countries are strengthening their regulations through central action. For example, in the United States, national standards have contributed to reversing the water quality declines evidenced throughout the United States in the 1970s and early 1980s. I am very familiar with this because I worked on the Great Lake's Water Quality Agreement. In Switzerland, environmental quality dramatically improved after centralized policy- making was forced by referenda in 1953 and in 1971. In the European Union, countries are racing to the top on water quality as environmental decision making migrates to the level of the overall union. In the EU, central coordination and standard setting have saved resources, improved transboundary relationships, enhanced the understanding of water resources and provided support for jurisdictions with less capacity than others; all of this has lead to improved drinking water qualities. If the EU can do it with their different countries, why can Canada not do it with our different provinces? These jurisdictions, many of them at least as complex as Canada, have demonstrated that strong legislation can lead to improved water quality. There is no reason why Canada cannot implement a national approach to drinking water legislation with standards that protect all.
Coming back to the First Nations issue, Canada could implement something like a First Nation water commission as outlined by Ms. Phare. Such a commission could assist in applying national standards in a locally appropriate way. It could be used as a tool to support watershed and community planning through water laws and water management. As well, it could facilitate capacity building in communities to support traditional indigenous approaches to water management.
In summary, those suffering most from the fragmentation in Canada and the absence of legally enforceable national standards are those who live in rural and remote areas, including many indigenous communities. Incorporation by provincial reference as proposed by Bill S-11 would entrench the present broken and inadequate system.
Why should the federal government enact better legislation? First, the federal government clearly has responsibilities related to the health and safety of First Nations. Second, many threats to drinking water quality are not confined to one province; they are interprovincial and international in character and must be dealt with by the national government. For example, airborne toxic substances, including mercury and many carcinogens, that settle in water bodies can come from the United States, China, Japan and upwind provinces. Chemicals in products imported into Canada and made in Canada often include harmful substances that enter water. They can include endocrine disrupters, which mimic human hormones and can lead to a host of diseases and gender imbalance in populations, as we have seen. Contaminants from upstream jurisdictions, provincial or the United States in transboundary and boundary waters can confound any local attempts to deal with water.
A national approach to managing real and imminent threats to drinking water is required. Coordination is needed between an upgraded national chemicals management system, which is now under way, and enforceable drinking water standards. Applying the proposed Bill S-11 system on First Nations reserves makes addressing the larger problem more difficult and that is a lack of federal action to protect the health and safety of all Canadians from these forms of pollution. Similarly, waste water treatment through reference to provincial regulation cannot adequately address the need for clean drinking water because of the pervasive threats mentioned earlier. A national approach is clearly needed to address these complex risks.
I want to address a couple of the specific aspects of the bill that are deeply troubling to the FLOW members. First, it is completely unacceptable to abrogate or derogate from constitutionally protected Aboriginal rights. Second, in terms of resources, Bill S-11 is premature in that it attempts to solve a problem that the Government of Canada has yet to fully understand. Until the national assessment, now under way, is complete, we do not know the true seriousness of the problem, let alone know how much it will cost to address the challenges.
Finally, regarding collaboration or consultation, FLOW supports the approach outlined by CIER and Ms. Phare requiring the government to engage positively First Nations in a collaborative process. The Government of Canada must work with First Nations to define meaningful, adequate consultation before engaging in a process to develop a legal regime that affects the management of water on their lands.
In conclusion, FLOW believes that there is a need to move toward a comprehensive regulatory framework for First Nations that provides the same level of protection for First Nations across Canada. The framework proposed by Bill S-11 will not do that. It would impose a system without the support of the First Nations. This bill would also be a step backwards from trying to achieve safe drinking water for all Canadians.
We spend a lot of time, energy and money on security. What could be more important to security of Canadians than the dependability and quality of the water that we and our families drink every day? Thank you.
Vaughn Paul, Chief Executive Officer, First Nations of Alberta Technical Services Advisory Group: Honourable senators, thank you for providing us with this opportunity to speak to you on this critically important issue. Before I start, I would like to tell you a bit about our organization.
The First Nations of Alberta Technical Services Advisory Group, or TSAG, is a not-for-profit corporation created by the chiefs of Alberta in 1998 to increase the capacity of First Nation technical service providers. We provide direct technical services like asset condition reporting, fire protection, information technology, environmental management and training specific to those areas to all First Nations in Alberta.
We have a particular focus and expertise in water management at the grassroots level in First Nation communities. We operate the Circuit Rider Training Program which trains First Nation water and waste water system operators. TSAG works with First Nation operators to produce, first and foremost, safe drinking water and to develop training plans, maintenance management plans, and emergency response plans for those specific plants. This is accomplished through our dedicated staff of seven trainers, a troubleshooter, and an adult educator who assists operators in obtaining certification and general equivalency diplomas, if required.
TSAG is currently in the process of connecting water treatment plants to the Internet, which will enable us to remotely monitor water quality. We also run other important water-related services and programs with Alberta First Nations, such as the Aboriginal Inland Habitat Program, in conjunction with the Department of Fisheries and Oceans.
As you may be aware, in 2009, Indian and Northern Affairs Canada provided funding to the various regions of Canada for the purpose of analyzing the potential issues that First Nations and their water system operators might face if Canada introduced new drinking water legislation using the incorporation by reference of provincial water laws.
INAC's terms of reference said that the purpose of the impact analysis was to provide INAC with input from First Nations. This was supposed to be done on a budget of $468 per Alberta First Nation, $22,000 in total. However, because of TSAG's working with First Nations, the Alberta chiefs directed us to lead the impact analysis, which we agreed to do despite our concerns about the insufficient funding and the two-month time frame imposed by INAC. The process included a review and consideration of the five provincial statutes and 19 regulations, codes and guidelines, approximately 149 pages of regulatory requirements that make up the provincial regime for drinking water and waste water in Alberta. We sought input from 47 First Nation communities in Alberta and their water system operators. Finally, we brought together all of that information in the impact analysis report which was submitted to INAC on April 6, 2009.
Disappointingly, INAC has not responded to any of the concerns and issues identified within the impact analysis. This void has left Alberta First Nations wondering why INAC requested and funded the impact analysis if they never intended to review, respond or meet with First Nations to discuss the concerns raised within the document. We understand there is a legal obligation to consult; however, we are more concerned about the practical implications of INAC's failure to consider the impact analysis.
Bypassing the impact analysis report depicts that Bill S-11 has been developed without meaningful input from First Nations' leaders, communities or water system operators in Alberta.
To ensure this committee understands the importance of the results provided in the impact analysis, we want to provide a brief summary of the main concerns identified by Alberta First Nations. For your reference, we have posted the entire document to our website at www.TSAG.net.
The overriding and persistent concern identified by First Nations and water system operators in Alberta is inadequate funding for drinking water systems. Yes, INAC has invested over $2 billion in recent years, but that money only tackled trouble spots in First Nation communities across Canada. More funding, perhaps much more, is required in order to bring all First Nation water systems up to acceptable standards. Those costs are being studied by the national engineering assessment, which we will not have until Bill S-11 is well on its way to becoming law.
INAC currently funds 80 per cent of the estimated rather than actual operation and maintenance costs of First Nations' drinking water systems. In 2005, the Commissioner of the Environment and Sustainable Development found that the cost estimates underlying this percentage had neither been revisited nor updated for several years. Many First Nation water technicians told TSAG that the practical result for their communities is that they often must operate and maintain their drinking water systems on budgets that fall far short of their actual costs. By the third quarter of their fiscal year, many First Nations are struggling to pay water operators, buy chemicals, and undertake basic maintenance on their water systems.
The expert panel stressed that meeting regulatory:
. . . .requirements depend on adequate investment in both human resources and physical assets. Regulation without the investment needed to build capacity may even put drinking water safety at risk by diverting badly needed resources into regulatory frameworks and compliance costs.
No one wants new drinking water legislation to make the situation worse than it already is. Nothing in Bill S-11, INAC's discussion paper, or its plans for implementing the bill addresses this critically fundamental issue.
Dr. Harry Swain, the chair of the expert panel, hit the nail on head when he said that if we want to get good water on Indian reserves, then we should worry about the basic resources and then about a regulatory regime. Alberta First Nations uniformly communicated the same concern to TSAG during our work on the impact analysis.
First Nations are also concerned about the staggering cost implications of Bill S-11 placing them under Alberta's new water market system, where even small allocations of water are being sold for millions of dollars. These added costs will make a bad funding situation simply horrendous. It is worth noting that INAC has made no commitment to purchasing water market allocations for First Nations.
On a similar note, First Nations and their water technicians said they are concerned that INAC has not determined which government agencies will be responsible for regulatory monitoring, enforcement and compliance. It is a big leap of faith to be asked to accept Bill S-11 without knowing who the regulator will be. Many First Nation leaders and water technicians look to TSAG's successes in water management and have indicated that their preferred solution is the creation of a First Nation entity to regulate water on reserve lands.
We are all for solutions, but First Nations are really concerned that INAC has not assessed whether Alberta's regulatory regime is an effective option and whether it makes sense for First Nations. The expert panel found that provincial law was the weaker option. Alberta Environment's 2007-08 annual report raised significant doubts about the effectiveness of the province's drinking water regime, finding that it "lags far behind on its own performance goals on drinking water safety," and that the system suffered from a one-third "increase in the number of incidences of . . . breaches of water quality health standards."
There are also serious issues with source water protection under Alberta's regulatory regime. The Alberta government says they have no obligation to include First Nations in watershed management planning which is intended to protect source water.
Alberta also lacks enforceable source water protection legislation, like Ontario's Clean Water Act. Alberta's watershed management plans are not legally binding and only set out unenforceable water quality objectives. As a result, Bill S-11 will lead to drastically better source water protection for Ontario First Nations than for Alberta First Nations. Is that effective or fair?
For these reasons, Alberta First Nations and water technicians are very worried that INAC has not carefully considered the provincial regulatory regime and whether it is a real solution for First Nations' drinking water.
TSAG agrees with the long held position of the Assembly of Treaty Chiefs of Alberta that there is a regulatory gap in First Nation drinking water and wastewater that needs to be filled, but First Nations must have a central role in a truly collaborative effort with Canada to develop legislation to fill that gap. However, based on significant concerns and issues raised by Alberta First Nations and their water technicians in the impact analysis, we respectfully submit that Bill S-11, as presently drafted, is likely to create as many or more problems than it fixes.
We recommend that the bill be returned to the Government of Canada for further work, particularly more direct input from First Nations, failing which, the bill has to be materially amended to address its serious shortcomings, which will not be easy.
Senator Banks: I do not want to bore honourable senators by reminding them that I am unalterably opposed to this bill for some of the reasons you discussed. I want to ask Ms. Phare's legal advice because she has paid attention to this bill.
I would like to be corrected if I am wrong in my reading of this bill, which says that First Nations who have not signed self-government agreements can be by administrative decision, put on to list one of this bill. In other words, it is not something to which First Nations can opt in or decide to participate in the plan, but one in which they can be obliged to be covered under the provisions of this act, if it becomes an act, without an option of saying, no.
Do you think that is correct or do you think I am wrong?
Ms. Phare: Senator Banks, I hesitate to give legal advice on short notice.
Senator Banks: You are a lawyer.
Ms. Phare: Yes, I know.
Senator Banks: You said yes. Perhaps you can consider that and I will ask another question and come back.
Mr. Bruce, the Senate and several of its committees have been concerned about the question of safe drinking water for many years and have urged different things to take into account — not just for Aboriginal peoples but also for everyone because many of the problems you talked about are the same, no matter the colour of your skin. Sadly, they are egregiously worse on some First Nations than for some of the rest of us.
Can you imagine a situation in which the purveyance for public consumption of meat or bread or breakfast cereal or bubble gum or bottled water would not be federally regulated, and in which the purveyors of those things would not be susceptible of universally applicable sanctions if they did something in their manufacture and purveyance of those things to the public for consumption that made them ill? Can you imagine such a thing?
Mr. Bruce: No, I cannot; I think that we all have a right to expect that government actions will prevent harm through food and water.
I cited the European Union, which requires each country to report not only on the quality of their drinking water, but also on the quality of the water that is used in food production. This is a very powerful tool to ensure the continued good health of Europeans.
Senator Banks: As I have said many times before, we could live without meat — many of us do. We could live without wheat. We could certainly live without bubble gum, but humans cannot stay alive without water.
What is your view of the fact that the only thing that Canadians consume without which they cannot live is the only consumable that is not susceptible of federal regulation?
Mr. Bruce: I think it is a serious gap in federal regulations.
Senator Banks: You would agree that federal legislation with federal standards that are enforceable is a laudable goal.
Mr. Bruce: I think it is a necessary goal if we are going to ensure safe drinking water for all Canadians.
Senator Banks: This bill purports to do that. I understand you to say that while that goal is laudable, this is not the way to go about it; is that correct?
Mr. Bruce: As I read the bill, I do not think it does that at all. It tends to enshrine the present fragmented approach to drinking water and foists it on the First Nations.
Senator Banks: Ms. Phare, have you had a chance to look at that provision?
Ms. Phare: I hesitate because I know you have received conflicting testimony on that particular clause and I did not turn my attention to it in my presentation. I would prefer to undertake to get you an answer to that question, from my opinion.
Senator Banks: Of your opinion?
Ms. Phare: Certainly, I would do that.
Senator Banks: As soon as you possibly can.
Ms. Phare: I will do that very quickly.
Senator Banks: Mr. Paul, it is my opinion that this is — to put it crudely — a downloading of a long disregarded federal responsibility upon people who are ill equipped to meet the responsibilities that it contains.
Is that a fair statement? I am asking you because you are the person who ensures that people are equipped to do this, and by "equipped," I mean resources.
Mr. Paul: The problem we have with respect to training our Circuit Rider operators is that they fear the responsibility of taking on facilities that are not adequate. Given their choice, they would much rather be doing something else than looking after some of these antiquated facilities, using your reference, the bubble gum patchwork of putting them back together. Unfortunately, there are not enough resources in our region or nationally to do the kinds of upgrades that are required.
They are very well equipped. Our staff does a remarkable job with what they have to work with. The problem we have is trying to maintain those facilities with some of the pressures we have with respect to the source water and the size of the populations that are coming on. The plants are working full tilt. They are machines and will break down now and then. That triggers a number of others issues and concerns that need to be addressed.
Virtually all our facilities and all our operators, trainers and trainees in the First Nations in Alberta are equipped to handle the facilities they have, but they certainly need more resources, either financial or human.
Senator Dallaire: This is a question for all the witnesses. We have heard in direct terms that this bill is unsalvageable with regard to what it purports to achieve, that no matter how many amendments you make, you will never achieve any enhancement on what exists now.
There was the First Nations Water Management Strategy in 2003 and then the Plan of Action for Drinking Water in First Nations Communities in 2006. We have expert panels going on. It is even unusual that this bill, a government bill was introduced here in the Senate. This committee stated on May 31, 2007, that the delivery of safe drinking water should be dedicated by INAC and should be a precondition to legislation, that is to say the identified resource needs for First Nation communities. We even said that we should not touch any of the legislation until that assessment is complete. We have been given this piece of legislation and we said we should not even look at it.
On June 8, 2009, in the fourth annual progress report released by INAC, we have statements such as the following: Since 2006, the number of high-risk water systems is down from 193 to 49; only three of the identified priority communities remained on the list and aggressive plans were in place to address these communities. More than 60 per cent of water treatment operators had received the first level of certification or greater.
This report is rather positive. They have invested a lot of money. Then all of a sudden, in September 2009, we get this proposed legislation initiative, which had been raised in the engagement sessions and within the impact analysis and correspondence.
If you have invested a lot of money, it is getting better. No one said it is not getting better. We have achieved that. There are certainly problems of operations and maintenance, and of course training and sustaining it, but it is getting better. The government is prepared to invest even more money. In fact, the current budget, I think, is $330 million. Then all of a sudden they want this legislation. Why do they want this legislation? What do you believe is the ultimate aim — and I am not talking Machiavellian here — of bringing in this legislation?
Ms. Phare: At the risk of speculating, Canada has been criticized soundly for the lack of a mandatory regime that protects safe drinking water for First Nations people. The Auditor General's report and many other reports have been very hard on the federal government for the regime or lack of regime that is operating in First Nation communities. To me, when I look at this, this helps to say that now we have a law. It does not necessarily require that anything be done right away; it is just a permissive piece of legislation that you do not have to act on under specific time frames. It does not set standards. It does not set anything mandatory. However, it allows you to say that the legislative gap is now closed.
I have heard from government officials that they will not impose this; they will work with every First Nation individually to make this happen, and it will only happen when they are ready. I think that would allow the government to say that they have not done anything because no one is ready. It shifts the responsibility or the focus somewhat away from the government and onto the First Nation. I think it is probably for those reasons, but I am speculating, obviously.
Mr. Bruce: The other thing that I think is quite surprising is that rather than saying that all First Nation communities must meet the standards that are set out in the national drinking water guidelines, they have this provincial reference idea, which preserves the patchwork quilt of water quality standards that we have across the country. That patchwork quilt makes it such that one group receives a high level of protection and another group rather low protection.
Senator Dallaire: The national engineering assessment is not complete; it is ongoing. We do not even know the scale of the demand. The government has spent $2.3 billion, or is about to. That seems like a lot of money, but if the requirement is $8 billion, that is not a lot of money. We do not know what that gap is. However, there is the INAC internal risk assessment framework.
Are First Nations or Aboriginal people participating in establishing the criteria and in the decision processes with regard to the risk assessment framework and specifically on the national engineering assessment? Are Aboriginal people part of the team and are they participating in the decision and priority and listing of that?
Mr. Paul: At the outset, in the development of the terms of reference, First Nations were involved and set out the terms of reference, so they are looking at exactly what we are trying to accomplish with that national engineering assessment.
Other than that, the engineers come to the communities and go through it. We have not seen any reports. None of the communities in Alberta have seen any of the reports that speak to what is involved. In terms of Circuit Rider, from our perspective, we participated with the engineering group that came to Alberta and offered our insights and suggestions, and that is what they rolled up into their final report.
Senator Sibbeston: Mr. Chair, I want to ask you a sincere question. We have heard from approximately 20 witnesses, and apart from the government representatives, I am not aware of one witness who has been in favour of this bill. All witnesses have said that it is not a good bill and that it cannot be amended to make it acceptable.
Considering all of the testimony we have heard, what is the purpose of our hearings? This Aboriginal Committee has worked very well in a non-partisan fashion, but if it comes down to a vote, there being more people on that side of the table than on this side, despite what we have heard from the many witnesses, this bill may very well be passed in this committee and in the Senate.
I say this sincerely. What is the purpose of hearing additional witnesses when we know what they will say? What will be the end result of this exercise?
The Chair: It would be very presumptuous of me to prejudge what witnesses will say. I agree with you that this committee has operated in as non-partisan a manner as is possible in a parliamentary system, which is generally quite confrontational.
We are hearing our last witnesses tonight, and the minister is due to appear at our next meeting. It is possible that the minister will be unable to attend due to scheduling difficulties.
Some witnesses have said that the bill is not amendable, but others have said that it is, although they have said that hesitantly. I think Mr. Bruce said that.
In all fairness, I think we should continue our hearings. In addition to the minister, one other witness from one of the major Aboriginal organizations may appear, and then we will proceed according to the will of the committee. I chair this committee at the behest of its members.
I hope that I have answered your question.
Senator Dallaire: Will we have time at the end of our meeting to go in camera for a few minutes?
The Chair: If it is the wish of the committee to go in camera for a couple of minutes at the end of the meeting, I, as chair, will attempt to fulfil that request.
Senator Raine: Mr. Bruce, you say that there are no enforceable national standards in Canada. Is it that there are national standards but they are not in law?
Mr. Bruce: There is a national guideline, which is not at all enforceable and which is left up to each province and territory to adopt if they wish.
Senator Raine: Is that national guideline in a form that could fairly easily become a national standard?
Mr. Bruce: Yes.
Senator Raine: Would it make sense for that national guideline to be referenced in the legislation as a target standard? I think we all appreciate that until there is the capacity to reach the standard, it is not logical to legislate penalties. That is the chicken and egg situation that we are in.
Are the national guidelines acceptable as a standard that we should be seeking in terms of First Nations water?
Mr. Bruce: The Commissioner of the Environment and Sustainable Development complained rather bitterly recently that the guidelines have not been modernized and kept up to date. They do not include a level that cannot be exceeded for some of the more exotic chemicals that we now find in our water supplies.
Conceptually, I think that would be fine if the guidelines were brought up to date with modern science. I believe it would be fine if all the people responsible for water in First Nations communities adopted the standards.
Mr. Paul: Senator Raine, all of our communities adhere to that guideline. There are parameters with respect to levels of turbidity, chlorine residual and things of that nature that communities strive for. That is the minimum that we try to achieve. We are having some difficulty achieving that right now due to source water issues that we have in Alberta. It makes it a little onerous, but it is certainly a good idea to start. As you said, if we put the cart before the horse, it will be very difficult for our communities to achieve the objective.
Senator Raine: I was very surprised to hear that you have to purchase source water from the Alberta government. That is new to me.
Clayton D. Leonard, Legal Counsel, First Nations of Alberta Technical Services Advisory Group: That is not clear in law yet. The Alberta government very aggressively takes the official position that it has jurisdiction and ownership over water resources within First Nation lands. First Nations say that it does not, that it is either our jurisdiction or jurisdiction shared with the federal government and that those resources came with our reserve lands and are part of the treaty agreement. They are worlds apart, which is one issue that Alberta has stressed. If you have that sort of relationship with a provincial government, what will regulation with them as the regulator look like?
Mr. Paul: There is also the issue of scarcity, especially in southern Alberta. In a number of communities, the watersheds are oversubscribed. There is not enough water for new licences. One development in southern Alberta had to purchase a water licence for $15 million for 1,000 cubic feet.
If we factor that into our growing communities, what will INAC do to help us when our communities grow and our source water areas are depleted? What will we do to recover those costs? Will we be left on our own?
Senator Brazeau: The beauty of this process is that we have draft legislation that gives people coming before this committee the opportunity to offer solutions to improve upon the bill.
Since we started this process, we have heard the concerns of many witnesses, but, in my opinion, we have heard very few solutions.
I have heard many comments. I never raised this before with any other witness, but some people said there was a lack of leadership with respect to water, a lack of consultation, a lack of resources, the potential infringement on Aboriginal and treaty rights and perhaps we should look at non-legislative options.
Much of what we are hearing is a process question — process, process, process — but we are not talking about the health and safety of First Nation citizens living on reserve with respect to clean and safe drinking water.
I was born in the municipality of Maniwaki, Quebec; and 1,000 metres from where I lived — I had the municipal drinking water, which is regulated — First Nations citizens on reserve did not have any running water. As a matter of fact, Indian Affairs still to this day funds my community, of which I am a member, with respect to bottled water.
When I hear statements such as lack of leadership, to put facts on the table, this government is the only government that has acted to try to fix the problem of clean and safe drinking water on reserves. As a matter of fact, with respect to some of the resources in the past budgets, my community of Kitigan Zibi partnered up with the municipality of Maniwaki so that a portion of the community could have clean and safe drinking water.
As a First Nations person, I understand there are Supreme Court decisions with respect to consultation. I also understand that consultation is important, but when we are talking about the health and safety of First Nations citizens, what more consultations are really needed?
My community did not consult with me when they decided to go to the municipality of Maniwaki to get the infrastructure built so that there would be clean and safe drinking water. If this bill passes, I can assure you that the majority of the residents of Kitigan Zibi will have clean and safe drinking water.
If there are communities that are moving forward and want to move forward with this legislation, what do you have to say with respect to your opposition to this current piece of legislation?
Ms. Phare: There are a number of things embedded in your comment. I will try to deal with a few of them.
First, I do not feel that this bill, as drafted, will get to the thing that you are trying to accomplish with safe drinking water, because it is enabling legislation that does not provide any specifics. Even if it were enabling in the structure and said we need to negotiate this with First Nations within five years — even a time period — but it does not even provide that. You literally could pass this bill and not do anything after. Then what you are left with is the same thing you have right now, which is Indian Affairs making decisions about who gets what, according to their risk assessment framework and their plan of resources, which is exactly what they said. They said we will continue to make decisions that way, according to the structure we have internally and the money we have, and we will get to implementing this on a First Nation-by-First Nation basis when everyone is ready and the money is there.
With respect, I agree that it needs to happen, that you do need safe drinking water for First Nations. I just do not think this is the mechanism to do it, as it is currently drafted.
Senator Brazeau: Would you agree with me that basically that is how reality works. If you have First Nations communities who are ready to go — and this is why it is enabling — then that should not prevent First Nations communities from being progressive, being ready to go, start developing the regulations and moving forward.
Ms. Phare: I believe that is not the approach that is warranted in this day and age, in terms of First Nation jurisdictions — First Nations having various authorities under law, having treaty rights to water. I think that having First Nations manage their drinking water through regulations under a piece of federal legislation is just not politically or legally acceptable any longer.
That is what the Supreme Court is saying, that the way we all live together is to negotiate a solution that is based on the authorities that First Nations have under treaties, self-government agreements and everything else.
Senator Brazeau: Having said that, having every other Canadian being guided by regulations in their respective provinces, why should First Nations not be guided by regulations as well?
Ms. Phare: They should; they should just be involved in creating the laws, because they have special rights protected under the Constitution. They have the right to be involved in creating the law; that is the difference. However, I agree that all Canadians should be subject to drinking water standards that are enforceable and that protect them.
Senator Campbell: There seems to be this need to wrap this bill into safety and human welfare. Am I correct in assuming that this bill has nothing to do with safety; that nothing in this bill will change what is going on?
Ms. Phare: In my view, yes.
Senator Campbell: It is not a safety issue.
Second, in fact there are no regulations in Canada for drinking water; is that correct?
Ms. Phare: Yes, at the federal level.
Senator Campbell: Guidelines only.
Ms. Phare: Right.
Senator Campbell: Not regulations; there are no regulations. In fact, what we should be looking at is a bill that encompasses all Canadians — with negotiation, with recognition of Charter and treaty rights; we should have a law that covers everyone.
I live on an island; I have a well. I have never tested it. I have no idea what I am drinking. Well, I do, but it is not out of a well. We do not have to go into that.
That is my point. There are no guidelines, period, so why would we be doing this to people who have not had the opportunity for consultation. Am I correct?
Mr. Leonard: As legal counsel of the Chiefs Assembly for four years on this issue, I have to respond briefly to some of the points that Senator Brazeau has raised.
I do not know how many times you can ask someone to read what you have submitted. We have four years of resolutions and letters to the Minister of Indian Affairs and to the Prime Minister from the chiefs in Alberta saying there is a gap, we know it needs to be filled, we want it filled and we want to be collaborative partners in filling it.
It is not consultation for the sake of travelling or money for hotels, like you said on the radio in Edmonton on February 17. It is consultations so that communities and people on the ground managing water, like people who put together the impact analysis, will be listened to so that when you do a bill, you get it right.
The Chair: I do not want to get into rebuttal, Senator Brazeau. I will let you comment with the next panel.
Our second panel is composed of four groups. We welcome Verna Polson, Algonquin Nation Director, Quebec Native Women Inc.; William K. Montour, Chief, Six Nations of the Grand River Territory; and Dayle W. Bomberry, Senior Administrative Officer, Six Nations Council of the Grand River Territory; Joseph Jobin, Director of Livelihood, Treaty 8 First Nations of Alberta; and Bill Erasmus, National Chief of Dene Nation.
Verna Polson, Algonquin Nation Director, Quebec Native Women Inc.: This is my first time doing a presentation.
The Chair: Relax. We are not judging you. We came to listen to you.
Ms. Polson: All right. Greetings, chair and honourable members of the Standing Senate Committee on Aboriginal Peoples. I thank you for inviting me today to address the important issue of safe drinking water on First Nations.
This health issue is near and dear to my heart as we experience some real problems with safe drinking water in many Algonquin communities. We have seen an increase of economic activity, namely mining and drilling in our territories, which is having a negative impact on the rivers and lakes from where we draw our drinking water. We are asking ourselves: What is being put in our water?
For this reason, my sister, Cathy Polson, who is sitting in the audience today, and I decided to organize a walk to raise awareness of the need to preserve safe drinking water. We are calling this event the Algonquin Mother Earth Water Walk. The walk will take place this spring from May 1 to May 8 throughout the nine Algonquin communities. We are looking for all the support we can get as this walk will be crucial to sensitizing and consulting all Algonquin communities about this important issue. As Aboriginal women are the caretakers of the water, and we have to fight not only for this generation's right to clean and fresh water but also for the continuous abundant supply for future generations as well. T
The name, Algonquin Mother Earth Water Walk, speaks of the need to start healing Mother Earth through her waters. Clean water is the most needed element of life. We must work together not only with indigenous people but also with all people to make small changes that will make a big difference in how we feel about Mother Earth. Access to safe water is a basic human right for all people living in Canada, including Aboriginal people and should be recognized as such.
Bill S-11, An Act respecting the safety of drinking water on first nation lands, is a small step in the right direction by filling the legislation gap that currently exists on our lands. However, with Bill S-11, the federal government has defined the legislation option of "incorporation by reference" as the sole option for Aboriginal communities. This would mean that existing provincial laws governing the provision of drinking water and the disposal waste water would now be applicable to First Nation lands. According to numerous Aboriginal organizations, including Quebec Native Women Inc., the "incorporation by reference approach" would only magnify the issues and may even create more safety problems, as the majority of Aboriginal communities are not currently equipped or trained to take over the responsibility of the water and sewage systems.
Quebec Native Women Inc. believes that the management and protection of water should fall under the jurisdiction of the Aboriginal communities.
I am sorry, but I cannot continue right now.
The Chair: Take a break, then, and I will go to Chief Montour.
William K. Montour, Chief, Six Nations of the Grand River Territory, Six Nations Council:
[The witness spoke in his native language.]
Good evening, honourable senators. In my Mohawk language I said, "Hello, and I still respect the great peace between us."
As you know, I am the elected chief of the Six Nations of the Grand River. I want to thank the committee for meeting us today because it is important that you hear, loud and clear, that this proposed legislation is wrong and should be withdrawn.
First, with respect to the Six Nations Council water situation, Six Nations presently has 16 kilometres of water main, primarily in the village of Ohsweken, which represents only 9 per cent of our community. Therefore, the majority of the Six Nations population operates with dug wells bored wells or cisterns.
In 2004, INAC and the Six Nations Council Commission did a water geological study that indicated that 97 per cent of the wells that were tested were undrinkable. With our current limited water facility, we can no longer expand any more subdivisions for housing, additional institutional facilities, commercial or industrial projects.
Today, as we speak, Six Nations is without any fire-flow protection. If a structural fire erupted within the village that forced our volunteer fire department to connect to a hydrant, they would deplete our elevated water storage within three hours, leaving the community without water. Additionally, if this happened it would take our present water-treatment plant a week, if not more, to produce enough water to start providing potable water to the people again. In other words, honourable senators, our current water-treatment plant only produces 66 per cent of its designed capacity for potable water — 460 per cent below what is required for fire-flow protection — and this particular plant works 400 per cent beyond its normal operating standards. It runs 24\7.
Six Nations are arguing with the Ontario regional office of INAC to begin the construction phase of our new water- treatment plant, which we hope will increase our current production by five times in the worst water conditions. The Grand River is one of the worst streams in North America to make potable. It should decrease the 24-hour production time frame back down to normal production of four to six hours a day and will provide our community with proper fire flow protection.
This proposed new plant will allow the Six Nations to meet and exceed the highest standards in North America. For future planning, our plant has been designed in such a fashion to allow us to add additional water treatment units without a major building renovation. We thank our local Member of Parliament, Mr. Phil McColeman, for his help in getting us to where we are today.
We are hoping to produce high-quality, potable water in 18 months, but we have some difficulties with the regional bureaucracy regarding moving forward.
While a new water plant is good news for the village of Ohsweken, the majority of the population is still without potable water. Six Nations had a boil water advisory in place for several years. According to the 2004 hydrogeological study, 97 per cent of the wells tested reaffirmed that they were still not suitable for consumption, which is still an outstanding issue that we have with the department. In 2004, along with the hydrogeological study, INAC commissioned another study outlining options for the potable water solution on Six Nations. The options ranged from $5 to $6 million dollars annually to provide bottled water to constructing a new water plant and water mains throughout the territory, at an estimated cost of $150 million to $170 million. You can see the important role this new resource will play. We will have a state-of-the-art facility that will serve the Six Nations community's needs well into the future for our citizens.
In 2006, INAC established an Expert Panel on Safe Drinking Water for First Nations. This panel travelled across Canada to hear oral testimony and written statements on its proposed concept of water legislation and regulations. Six Nations of the Grand River presented in Toronto, Ontario, along with a number of other First Nations. We did not and still do not object to the regulations that would ensure potable water for consumption of First Nation communities. I want to be clear: We are not opposed to regulations and standards. We are opposed to the fact that we do not have the facilities to make potable water at that standard.
What Six Nations objects to is the paternalistic approach of INAC in implementing this proposed legislation to the federal government without first ensuring capital resources and training needed is provided to enable First Nations' water treatment operators to deliver what this new act demands with water treatment plants that can meet these proposed standards that I stated previously.
The expert panel specifically voiced its concern that INAC must first ensure that First Nations have adequate capacity — that is, capital equipment and human resources — before any regulatory regime is implemented. Passing this bill will not magically allow the First Nation community water plants to start producing safe, potable water.
Additionally, the expert panel stated, "it would not be credible to go forward with any regulatory regime without adequate capacity to satisfy the regulatory requirements." Not only would a regulatory regime take time to create and enforce, but the panel also concluded that the attention and money invested might be "better invested in systems, operators, management and governance." Panel members also expressed that if additional funding were provided to cover only the cost of the regulatory regime, the resource gap would continue. Honourable senators may recall that since 1996, First Nations have lived and continue to live with a 2 per cent funding cap. This government needs to stop and listen to its own expert panel: No regulations without adequate resources.
We feel that the duty to consult was not met. This is not optional. The Supreme Court has clearly stated that a duty exists when Aboriginal or treaty rights are affected. Water is a fundamental and integral part of our inherent Aboriginal rights. Recently, Canada publicly endorsed the United Nations Declaration on the Rights of Indigenous Peoples, which recognizes this obligation. I will read Article 32, section 2 of the declaration:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
We therefore call on Canada to uphold its endorsement, respect the Declaration on the Rights of Indigenous Peoples, and obtain free, prior and informed consent of our communities before enacting this legislation.
The most offensive aspect of this bill is that of liability. This bill saves and keeps harmless Her Majesty in the case of catastrophe, yet does not provide the same necessary resources for First Nations to build to the standards imposed on them. This is just wrong and has to be stopped; it goes against the rules of natural justice. The fiduciary relationship and obligations of the Crown must be maintained until First Nations agree otherwise and this includes no shifting of liability.
Clause 6(2) of this bill states:
. . . this Act and the regulations prevail over the land claims agreement or self-government agreement to which the aboriginal body is a party. . .
Clause 4(1) provides for the relationship between the regulation and Aboriginal treaty rights referred to in section 35 of the Constitution Act, 1982.
Quite simply, this is unbelievable. This bill proposes that the regulations made under it may abrogate or derogate from the Aboriginal treaty rights that are recognized and protected by the Constitution of Canada. This would make the law null and void, and is a good reason to withdraw it completely. We therefore recommend that this bill be withdrawn as it is in violation of Canada's Constitution Act, 1982, section 35.
Let me make some recommendations. First, Bill S-11 should be withdrawn until such a time as full consultation is conducted with the rights-holders, the First Nations of Canada, to obtain their free, prior and informed consent. Second, provide the capital infrastructure investment and resources to make the First Nation water treatment plants of equitable standards as required by the Crown fiduciary before this act comes into effect. We are waiting to hear the final report, INAC commissioned Neegan Burnside to complete on First Nations' capital needs. We recommend the federal government adhere to the expert panel recommendations, including the establishment of First Nations water commission. Four, we recommend that Canada adhere to the UN Declaration on the Rights of Indigenous Peoples based on its national, public endorsement of this declaration. Five, we recommend that Canada ensure that any new legislation affecting First Nations be in full compliance with the Canada Constitution Act, 1982, section 35, and withdraw this bill until it complies with First Nations Aboriginal and treaty rights.
If this bill goes through, we believe it becomes a human rights issue, not only for the Government of Canada but for First Nations governments across this country. In June of this year, the Human Rights Act takes effect. If somebody says to me, "The people in a nearby First Nation have water and we do not, I am taking you to human rights." Where do we as the Six Nations government go to get the resources to fight this kind of action? I think we are dealing with a two-edged sword. I thank you for listening to us today.
Joseph Jobin, Director of Livelihood, Treaty 8 First Nations of Alberta: It is a great honour to have the opportunity to present to you today. On behalf of Grand Chief Arthur Noskey, who was unfortunately called back to his First Nation, I bring greetings on behalf of the Treaty 8 First Nations of Alberta.
On June 21, 1899, the Treaty 8 between the Indians of North America and the Queen of England was signed. The signatories of Treaty 8 agreed to its terms for reasons of peace and friendship, ensuring what they thought would be a partnership. Treaty 8 was the most comprehensive treaty, encompassing a landmass of approximately 840,000 kilometres and is home to 39 First Nations communities, covering areas of what is now Northern Alberta, Northwestern Saskatchewan, Northeastern British Columbia and the southwest portion of the Northwest Territories.
Our people view Treaty 8 as a sacred covenant, to live in peace and share use of indigenous lands and resources with foreigners to our lands. Within the treaty relationship, the Crown agreed that Treaty 8 peoples retained the right to continue our way of life. The inherent right of governance includes the right of First Nation governance to make decisions related to First Nations stewardship. It includes the allocation and use of water resources associated with our way of life and conduct of our usual vocations within the treaty area.
I am here today to share the viewpoint of the Treaty 8 First Nations of Alberta and support the position of the Assembly of Treaty Chiefs, which was presented to this Senate committee on February 15, 2011, by Chief Cameron Alexis.
The committee should be aware that Alberta First Nations and representatives from the Minister of Indian Affairs' office are currently in negotiations without prejudice on possible changes to Bill S-11. We are cautiously optimistic but there are many unresolved issues. I am here to address Bill S-11 as it is currently drafted.
Treaty 8 First Nations of Alberta have consistently communicated our willingness to work with the Minister of Indian Affairs on issues that affect our members. Our First Nation leadership wants to ensure that our member First Nations have access to safe drinking water as a basic human right and as a means to exercise our treaty rights.
The Treaty 8 chiefs of Alberta recognize the need to fill the regulatory gap and therefore, we would support legislation that respects our right to have a clear and central role in the regulation of water in our communities that presents some practical possibilities of actually improving drinking water for First Nations and respects our treaty and Aboriginal rights. We would support legislation developed in genuine consultation and collaboration with First Nations.
This bill as written creates a false choice for First Nations. It asks us to accept potential erosions of our constitutional rights as a condition to get safe drinking water. Essentially, our First Nations are being told that Canada will deliver clean water if we agree that the federal government can diminish our rights under the Constitution.
This bill is simply a blank cheque of authority. This bill provides no sense of how Canada intends to ensure the safety of First Nations drinking water. Canada has not presented a clear plan as to what it will do under the bill, how it will do it, how it will fund it — if at all — and who it intends to act as a regulator. It is so broad and lacking in detail that it effectively enables Canada to do what it wants, when it wants, with whomever it wants without regard to First Nation rights and interests.
Bill S-11 must not be the system by which Canada assists Alberta with its assertion of ownership over our water resources on our reserve lands. This bill would undermine the spirit and intent of the treaty. Allowing this to happen would significantly infringe any treaty, Aboriginal or common law water rights that First Nations may have.
We have repeatedly expressed our concern that the incorporation by reference of provincial laws may result in the imposition of provincial water allocation and licensing laws on First Nations. Treaty 8 First Nations in Alberta want significant changes to the bill to ensure it cannot be used to impose provincial water allocation laws on First Nations on reserve water resources. We are also very skeptical that Bill S-11 will create an effective regulatory regime for First Nations drinking water in Alberta.
In Alberta, provincial legislation is developed without input from any First Nations in Treaty 8 Alberta, and their regulatory regime has no consideration of the realities of delivering safe drinking water and other water issues in Northern Alberta.
Simply imposing new regulatory standards will not ensure the safety of drinking water in northern First Nation communities. The fact that First Nations lack adequate resources to ensure the operation and maintenance of our water systems to meet provincial regulatory standards is something INAC is fully aware of, as their reporting requirements are quite stringent.
What is Canada's plan to address the resource gap in tandem with the regulatory gap? We do not know, and apparently neither does Canada.
Treaty 8 Alberta First Nations want to see more clarity in Bill S-11 as to how legislation will protect First Nations on- reserve source waters. Meaningful and effective source water protection requires a regulatory regime that offers some protection for the real impacts from off-reserve sources of pollution that affect the quality of water available on reserve. Bill S-11 does not address safe drinking water issue that First Nations downstream of industrial development have continually expressed.
Treaty 8 First Nations are located in areas that are currently under siege by large industrial development projects. These projects use vast quantities of water. Existing provincial regulatory systems are not intended to provide even a minimal level of protection for First Nations on-reserve source water from upstream sources of contamination.
Canada's intention to limit the application of regulations developed under the bill to First Nation lands does nothing to address downstream water issues.
Alberta First Nations view Bill S-11 as an erosion of our treaty rights and inherent rights of self-government, particularly with respect to waters within our reserve lands.
Article 19 of the United Nations Declaration on the Rights of Indigenous People asserts:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
We have our policy on what consultation means to us. With your permission, I present the Treaty 8 First Nations of Alberta position paper on consultation.
This position paper has been provided to the Government of Canada through the Prime Minister and the Minister of Indian and Northern Affairs, without a response from either. We are asking this body to honour our relationship and instruct the Government of Canada to respond accordingly.
We are greatly concerned that the bill does not contain a non-derogation clause and rests on the assumption that First Nations have no right to a meaningful role in the governance of water on our lands and in our communities, contrary to the United Nations declaration that states in the preambular paragraph:
Recognizing also the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties, agreements and other constructive arrangements with States.
Treaty 8 validates the inherent government of First Nations subject to our treaty. Therefore, Treaty 8 First Nations want the bill changed to include a strong, non-derogation clause, and we want to work with Canada to develop other fundamental changes to the bill to provide First Nations with an active and meaningful role.
As we stressed in our opening statement, the Treaty 8 chiefs of Alberta recognize the need to fill the regulatory gap and would support legislation that is developed in genuine collaboration with First Nations. We would support legislation that respects our right to have a clear and central role in the regulation of water in our communities, legislation that presents some practical possibility of actually improving drinking water for First Nations and that respects our treaty and Aboriginal rights.
Honourable senators, unless Bill S-11 is substantially altered, Treaty 8 First Nations of Alberta cannot support it. In fact, we will actively oppose it. What a shame that Indian Affairs has wasted opportunity after opportunity to work with us to make real progress on this critical issue.
We ask you to reconsider this bill in its present form. In your earlier report, Safe Drinking Water for First Nations Communities, this committee recommended that the Department of Indian Affairs undertake a comprehensive consultation process with First Nations communities and organizations regarding legislative options. The recommendations include those set out in the reports of the Expert Panel on Safe Drinking Water and the Assembly of First Nations with a view to developing such legislation collaboratively.
By any measure, a one-day engagement session cannot be considered a comprehensive consultation process. No response has been provided to the impact analysis prepared by Alberta First Nations. Canada has not consulted with Alberta First Nations about legislative options. We ask this committee to consider our proposal for changes to the bill, which is included in our written submission, and we ask that you carefully review and consider the Assembly of Treaty Chiefs' impact analysis that has been ignored by Canada in the course of developing Bill S-11.
Bill Erasmus, National Chief, Dene Nation: Honourable senators, thank you for providing us the opportunity today to share our perspective on Bill S-11. Today we are presenting a shortened version of the written presentation; however, we will provide this committee with the longer print version of the presentation for your reference. I will begin by telling you what impact this bill will have on our region. For the record, I have with me Daniel T'seleie, who is also a member of the Dene Nation.
Internationally, Canada is in the process of negotiating a free trade agreement with the European Union that will include water. We are seeing the impacts of climate change, regional impacts of the tar sands, and we are very aware of the concerns of Canada regarding Arctic sovereignty.
Regionally, keep in mind that we are part of the Mackenzie water basin, with waters coming from the Yukon, British Columbia, Alberta and Saskatchewan. It all comes downstream to us and affects us.
It is not so simple to say that through this legislation we will ensure safe drinking water for First Nations in our region. How will Canada regulate upstream users to ensure we have safe drinking water?
Another important aspect of our region's unique situation is the devolution process initiated between the Government of Canada and the Northwest Territories. The reason this is important is that it directly impacts the way water will be regulated, including significant changes to the regulatory system in the territories.
On January 26, 2011, the governments of the N.W.T. and Canada, represented by INAC, signed an agreement in principle for devolution. It is expected that a devolution agreement will be finalized by January 2012. As part of this transfer, the Legislative Assembly of the Northwest Territories will get new powers, similar to provinces, to make laws including water management. The agreement in principle says that the transfer will not affect existing rights or interests at article 5.3 of the AIP respecting water.
Our concern is that there are many rights to water held by Aboriginal peoples in the N.W.T. that will not be deemed as existing in January 2012, when the proposed devolution agreement is completed. Bill S-11 has the potential to aggravate the situation. This is because consultation of Aboriginal peoples in the N.W.T. may not occur in the creation of the proposed devolution agreement, and any regulations established under the proposed devolution agreement may, by extension of Bill S-11, apply to First Nations. In fact, we are so concerned regarding the agreement in principle that an emergency Dene leadership meeting was held last week, from February 23 to 25, to address the potential devolution agreement. At the leadership meeting a motion was passed to pursue legal action regarding the agreement in principle and to develop a framework that would guide the negotiations of the devolution and resource revenue sharing agreement. That motion is attached as Appendix 8.
We have one important point to state respecting the proposed devolution agreement. By entering into this process, the Government of Canada is effectively taking the position that they have unquestionable authority and jurisdiction over water. Mr. Chair, they do not. Our people do not believe that the federal government has total authority over water in the Northwest Territories, because First Nations rights and jurisdictions were never extinguished. The decision of Justice Morrow in the Paulette case of 1973 had a significant impact on our political and legal position. He found Treaties 8 and 11 peace and friendship treaties, and that we still have an interest in land. The consequence of that decision was the creation of a national policy on land claims, and we have had a seat at the negotiating table ever since that decision. Our jurisdiction over lands and waters needs to be recognized and implemented. Our right to self- determination includes the right to self-government. This bill obviously does not respect or make room for that right.
If First Nations were partners in the drafting of legislation respecting clean water for our communities, it would be an entirely different and better story. We have five main issues of concern respecting Bill S-11. They include resources, the constitutionality, consultation, the impacts of the bill on self-government and land claims agreements, and fifth, the customary law approach to water management and regulation.
Past witnesses have heavily canvassed the first three issues of resources, constitutionality and consultation so I will not spend too much time on them. You can find my thoughts on these issues in my written submission. I will make a quick comment on consultation and then focus on the final two issues of self-government and lands claims agreements and customary law.
Regarding the issue of appropriate consultation with respect to the bill and the potential regulations, the Crown has failed to abide by laws respecting consultation and accommodation leading up to the drafting and introduction of the bill. The government has talked about the engagement sessions that took place across Canada. The 2009 engagement session held in one community out of a total of 30 communities in the Northwest Territories had two First Nation participants, two territorial representatives and six federal representatives.
Mr. Chair, how can that possibly qualify as appropriate consultation on this legislation? Consultation is supposed to happen upstream of government actions or decisions that might impact Aboriginal treaty rights. It is supposed to happen in the early stages, not at the last moment.
Respecting the fourth issue of the potential impacts of the bill on existing self-government and lands claims agreements, clause 6(1) of the bill says that First Nations laws will be overridden by regulations. This seems to contradict the idea that customary law will be included in the creation of regulations under this bill. Second, clause 6(2) suggests that this bill is opt-in legislation for those First Nations who have self-government and land claims agreements. However, there has been no indication as to how this process of opting in will happen.
This may present unique challenges to those groups in my region. For example, the provincial government in my region has particular powers respecting land and water management and regulation under their agreement, including the requirement to be consulted on the management of the water basin. This is a far better position to be in than what is presented under Bill S-11 where, if regulations are incorporated by reference, the First Nations will have to incorporate them as amended from time to time, perhaps without the requirement of consultation. See clause 4(3) of the bill.
What about those First Nations that are still in negotiations? They are facing a complexity of laws and legal developments based on the precedence of other existing agreements. They are facing laws that may be developed under the proposed devolution agreement with or without their participation. Regulations proposed under this bill may override any existing First Nations laws they have respecting water. Bill S-11 suggests a way for federal and territorial governments to position themselves at the negotiating table in a way that may be detrimental to a continuation of traditional customary laws respecting water and land.
Another example of how First Nations are governing and exercising jurisdiction in the Northwest Territories is the Sahtu Land and Water Board. The Sahtu claim area covers 280,238 square kilometres including Great Bear Lake. The five communities in the region are Colville Lake, Fort Good Hope, Tulita, Deline and Norman Wells. The Sahtu Land and Water Board is the regional authority for land use permits and water licences. The Sahtu Land and Water Board is one of six boards of public government established by the Mackenzie Valley Resource Management Act. These boards provide an integrated and coordinated system of land and water management in the Mackenzie Valley.
There is also the example of the Gwich'in Land and Water Board. This is a regulatory authority established under the Gwich'in Comprehensive Land Claim Agreement and given effect by the Mackenzie Valley Resource Management Act to provide for an integrated and coordinated system of land management in the Mackenzie Valley. The act authorizes the board to regulate the use of land and water by issuing, amending, renewing and suspending land use permits and water licences throughout the Gwich'in settlement area, which includes all Crown, Gwich'in and any other private lands.
The fifth and final issue I want to speak to this evening is about empowering First Nations to develop their own water management systems, including appropriate regulations based on Dene law, which reflects Aboriginal rights and rights held pursuant so Treaties 8 and 11 and existing modern land claims agreements.
We need to recognize First Nations jurisdiction instead of taking away rights. We as First Nations can implement the necessary customary regulations to ensure safe drinking water in our own communities. First Nations governments exist. We can work in partnership with Canada either through co-drafting the appropriate legislation or through taking a customary law approach instead of an incorporated-by-reference approach.
We as First Nations have our own customary laws relating to the management of water. These legal traditions have existed from time immemorial and will continue to exist. They include not only technical and traditional knowledge respecting water management, but also include aspects of our cultural and spiritual laws, values and practices that are integral to our way of life. Trying to compartmentalize water into drinking water and other categories does not change the way water really is; a part of all of us tied into every aspect of life on earth. Our customary laws recognize a holistic understanding of water and how we should manage it through consideration of the human rights of peoples and also the rights held by the natural world; the lands, the animals, all life.
Our approach is more in line with what is advocated by numerous environmental organizations and engaged Canadians; taking a precautionary approach that recognizes an integral water management strategy. The United Nations Declaration on the Rights of Indigenous People recognizes the right to food security and the right to health among others, which is directly related to the way we choose to manage water, our subsistence and life ways as indigenous peoples.
In conclusion, Canada abstained from the vote to declare access to clean water and sanitation a human right at the UN General Assembly in 2010. Yet, Bill S-11 claims to offer the right to access to clean water to First Nations in Canada. At the same time, the bill also overrides First Nations' laws that might reflect the true human rights of First Nations and their constitutional protected rights in Canada.
Canada does not have the ability to extinguish our rights unilaterally. How can Canada reconcile saying one thing and doing another? Why should Canadians and First Nations across this country accept this behaviour? The UN Declaration on the Rights of Indigenous People states under Article 7 that we are distinct peoples. The more you think about it, if we agreed to the Bill S-11 provisions, what would happen to us? If you put your arm and hand in the air and say, "This is where our rights are," but we allow this bill to go ahead, where will our arm drop to? How will our rights be weighed differently? We would be different people with different rights at the end of the day were Bill S-11 to become law.
The Chair: Ms. Polson would you like to finish your remarks.
Ms. Polson: Yes, thank you.
Quebec Native Women Inc. believes that the management and protection of water should ultimately fall under the jurisdiction of Aboriginal communities once they have adequate capacity, training and infrastructure. It is important to emphasize that this process will likely take time.
For this reason, we urge the Senate committee to hold the Government of Canada accountable to its fiduciary duties to Aboriginal people by providing us with the means to develop our own water management system based on sustainable development and Aboriginal cultural value instead of a unilaterally imposed regulatory framework foreign to us.
Senator Dallaire: Chief Montour, you spoke about human rights. The international community recently signed and put into place a convention on the human right to water. I am not sure whether you realize that Canada did not sign that convention. In fact, although it signed the Aboriginal convention recently and years after, it has not put it into law.
The government gave the reason for not signing because they did not want to become caught up in having to provide water to a country like the United States if they run out of water. We do not want to sign a convention because we are worried that we will be obliged to give our water to another country, yet we have not seemingly recognized the right to safe water for Aboriginal peoples who were here before us.
Could you tell me whether you would want to use that convention in advancing your position that Bill S-11 is in fact an abuse of the human right to access safe water?
Mr. Montour: Personally, I have the same concern about the United States wanting our water. We have always had that issue. What I am referring to is this: If there are standards established without adequate equipment to meet a standard, I believe that is putting an undue burden on First Nation governments. The Canadian Human Rights Act now, with section 67 being deleted, Canada has to come to the table under the Canadian human rights legislation to provide the adequate equipment to meet that standard.
I am also concerned that First Nation governments, after June of this year, when the Canadian Human Rights Act kicks in for us, we can be hit by the same thing from individuals within our community who are upset with us. In our case, we have only 16 kilometres of main, while we have 200 kilometres of actual roadway with people living near that roadway.
Senator Dallaire: The contention has been that once that comes into play, you may not have the resources to handle these complaints from your own people.
Have you ever, and unpretentiously, looked at all the money that we invest in our cities and villages here in the South with regard to safe drinking water? Have you looked at how much we are spending on keeping us with safe drinking water compared to how much we are investing in even trying to give you safe drinking water? In that comparison, have you ever seen a deficiency, to the extent that there is a deficiency, in terms of how we take care of ourselves and how you have the resources? Does the federal government have the responsibility to provide it to you?
Mr. Montour: This is the way I look at it: I worked for Indian Affairs for seven years, from 1995 to 2002. I remember that there was a $600 million tranche of money to provide water and waste water, and I believe there was another $300 million tranche of money, but I truly believe it was smoke and mirrors. Not much of it actually got out to the communities. That is where we find ourselves today. We are in the heart of the most developed part of Canada, yet we do not have good water.
I remember that as a child, I could not wait to get home to drink our water from the pump. When I was a child, springs in our community ran with pure water. Industrial waste, agricultural waste, municipal run-off, and natural run- off, have completely polluted out water table. In fact, in 1967, the Government of Canada, through the Minister of Indian Affairs, negotiated the gypsum lease with the Canadian Gypsum Company, under our territory. That depleted about 4,000 acres of our land. It took the water table right out, because it was only 90 feet down, and the water table runs through a fractured dolomite area. It completely drained it. We have been suffering since 1967.
Mr. Erasmus: That is a very good question on financing. The problem in this country — and this has been said here more than once tonight, and it has been said in these proceedings over the course of the last little while — is that Canada is not serious about working with us in terms of recognizing and having our jurisdictions implemented. I would be bold enough to say that there is lots of money in this country. There is more than enough money to work together to develop a good system. the political will is not there. That is the problem.
Senator Dallaire: Will Bill S-11 help that?
Mr. Erasmus: Bill S-11 is opposite to that.
Senator Dallaire: Thank you very much.
Senator Banks: Thank you, witnesses, for being here.
It is my impression that First Nations that have signed self-government agreements have the option of opting in to this bill and therefore of going into the derogation of their rights and the submersion of their rights and of provisions of section 35, et cetera, with their eyes open. In other words, First Nations that have signed self-government agreements can ask to be put on the list under this bill, and having done so would know that, as you have put it, we are trading this for that. We are prepared to submerge those rights in return for this. However, other First Nations who have not yet signed self-government agreements do not have that option, and will be, or can be, according to the minister, included under the provisions of this bill.
Do any of you have comments? I want to be corrected if I am wrong in that respect.
Mr. Erasmus: That is a good question. There is no such thing as opting in or opting out, the way the bill reads, so does not make sense.
Senator Banks: In the Indian Oil and Gas Act, though, you can opt in. The reason I am asking that question is because the derogation clause, as I have called it in this bill — it is not a non-derogation clause; it is a derogation clause — also exists in the Indian Oil and Gas Act, but it is one in which the First Nation has the option of opting in.
Mr. Erasmus: For people who have negotiated land claims agreements from my area where there are three large areas, it would not make sense for them to opt in because their agreements are based on having their jurisdiction recognized. They went into agreements to manage and take care of their own lands and resources, not to have Canada override them, so it would not make sense.
Mr. Montour: I suggest that this proposed legislation incorporates by reference provincial law, so again here is another incursion of provincial law into our jurisdiction. We do not have a self-government agreement. We have not negotiated one. When this law passes, Ontario law will apply at Six Nations of the Grand River and that is distasteful for us.
Senator Banks: Is that at your option?
Mr. Montour: It will be "you are in there."
Senator Banks: I want to make one observation for all witnesses and for all of us.
The Chair: As long as it relates to the bill, Senator Banks.
Senator Banks: It does. We hear and talk a lot about water as a human right. That is a very dangerous thing to do. We want all Canadians to have a right to clean drinking water, but if we call it a human right it gets into the area that Chief Montour talked about. If it is a human right, then people elsewhere are entitled to our water and we have all worked very hard to stop the exportation of bulk water from Canadian watersheds.
All that goes out the window if we call water a human right; people from Missouri can make a legal claim to our water. We must be very careful about that; not about the right of Canadians to clean drinking water but it is a distinction and very much includes First Nations. We must be careful when we argue for water as a human right. It is a very dangerous thing to do.
Senator Raine: Ms. Polson, I am interested in hearing from an Aboriginal woman who is concerned about water issues.
In your community, are women being offered the opportunity to be trained as water technicians?
Ms. Polson: No.
Senator Raine: Do you think it would be a good idea for them to be trained, because they tend to be living in the communities? I see cases where young people receive training as water technicians and when they graduate, they take jobs with other municipalities and do not go home with their certifications.
Do you think it would be logical to look into the pool of people who are actually living and attached to the community and training them to be water technicians?
Ms. Polson: It would be a great idea if the women would take on this responsibility.
Senator Raine: I have seen in some reserves where women go back to school after they had their families. They receive teacher training especially in teaching their native language to the students. In effect, they are returning education. I see that as a wonderful opportunity for women to get involved and I wonder whether you thought about that at all.
Ms. Polson: Actually, no, I never thought about it.
Senator Raine: Now you can think about it.
Senator Sibbeston: Mr. Chair, I have been here in the Senate since 1999 and I have to say that I have been privileged to have dealt with First Nations legislation. All of them have been pretty progressive. When I first came here we dealt with the Nisga'a, we dealt First Nations' financial institutions and statistics, Westbank self agreement, specific claims agreement and then the Tlicho Agreement. All these acts move away from the Indian Act. The Indian Act, as people know, it is a law that reads the Governor-in-Council, as advised by the minister, shall do things. To me, this bill smacks of the Indian Act language.
Can you comment? You are all experienced. How do you feel about facing a law that puts all of the power into the federal government cabinet and the ministers to make regulations for you?
Mr. Montour: If we look at the Indian Act, it came to be in 1876 as the Indian Advancement Act. It is not about protecting rights. The Indian Act is about control of a certain segment of society.
Many elements of the Indian Act are very archaic. It does not read in this day and age. I look at legislation such as Bill S-11 as the modernization of the Indian Act. I do not believe the Indian Act is an embodiment of our treaties. I believe it is a belittling of our treaties by controlling who we are as individuals, what we can do, how we do it, when we do it and where we do it. I have a real concern with the modernization of an archaic act to control a certain segment of this society.
Mr. Erasmus: The question that Senator Sibbeston is asking is clear. This bill goes back many years. It is a backward step as far as we are concerned. I will not say too much more than that.
I do want to say something about the human right to water. I do not think we should be afraid to talk about the human right to water, especially in this country. When we talk about water, we talk about the question of title, jurisdiction, and so on. Our original treaties did not extinguish our right to water. We did not give that right to anyone else. We were never defeated in water; we were never conquered. There were peace and friendship agreements and the Canadian courts have agreed with that.
We have a certain degree of sovereignty over water; so does Canada, so do the provinces and maybe the territories. However, we need to work that question out amongst ourselves and we should not be afraid.
There is strength in the existing treaties because they will supersede the NAFTA agreement, for example, which talks about resources, including water, with the Americans and with Mexico.
If you abide by the treaties, they will protect this country. That is part of their design. Treaty 11 water goes to the Beaufort Sea, and because the treaty was signed with Great Britain in 1921, it is an international instrument because Canada did not have the authority to sign at the time. By extension, it goes out 200 miles into the Arctic Ocean. That question of Arctic sovereignty has been solved. Follow those treaties. We should not be afraid to talk about the human right to water because that protects us.
Mr. Jobin: I would like to say that the archaic Indian Act at least allows the chief and council to make a bylaw respecting drinking water. Bill S-11 overrides the authority of chief and councils to make those bylaws.
I would like to speak to a couple of other questions. I am sorry, but I did not understand the procedure. I did not have my hand up in time. I thought we were all afforded an opportunity to talk.
Concerning Senator Banks' question about opting in or out, our understanding is that we do not have a choice. It will be imposed upon us. No one from Indian Affairs has ever told us differently, but that may speak to the consultation process that they have undertaken, or the lack thereof.
We wait to be corrected as well. We have asked Indian Affairs that question, if that is what that means. They have never told us that we have a choice to opt in or out.
Senator Dallaire asked a question about the water and shipment to the United States. That is a worry that we have in Alberta, especially based on Alberta's movement right now to work toward water markets. Incorporation by reference would allow that to happen because it is provincial law on First Nations reserve water. Indian Affairs has never done proper research, or has never tabled Alberta's recommendations to us or to our leadership. Alberta has commissioned three different recommendations to look at water allocation, and they all talk about water markets and allowing water markets to happen. No proper research has ever been done to see the impact. What does this mean to Bill S-11? Does this mean that water markets are part of all First Nation lands? That research has never been done. That is part of what we have asked for, to take a step back and include First Nations in this discussion.
The Chair: That completes our questions. I would like to thank the panel for their excellent presentations and their straightforward answers.
Senator Dallaire, do you want to go in camera for a very short period of time?
Senator Dallaire: I would.
The Chair: Is it the wish of the committee to go in camera for a very brief period of time?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I hear some no's.
Senator Banks: I say yes.
Some Hon. Senators: Nay.
The Chair: Do I hear six nays?
Now the yeas.
I see five yeas. The request is denied.
Senator Sibbeston: It would help if Senator Dallaire indicated the purpose of the meeting. It may be beneficial to all of us.
Senator Stewart Olsen: Sorry, we have voted. Maybe we can go in camera next meeting.
Senator Sibbeston: We have not finished the discussion.
Senator Stewart Olsen: We voted. It is finished.
The Chair: We voted on it. I counted the votes. I asked for the vote. I possibly erred in not asking for discussion before asking for the vote. I was surprised by what has happened, but that is the way life goes.
(The committee adjourned.)