Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 20 - Evidence - March 8, 2011
OTTAWA, Tuesday, March 8, 2011
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-11, An Act respecting the safety of drinking water on first nation lands, met this day at 9:30 a.m. to give consideration to the bill.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: I welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples, either on CPAC or on the web.
I am Gerry St. Germain, from British Columbia, and I have the honour and privilege of chairing this committee. The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally.
A number of reports have highlighted key challenges in the delivery of safe drinking water in First Nations communities, including aging water systems, certification and training of operators, lack of independent resources to properly fund system operations and maintenance, and a lack of clarity with respect to roles and responsibilities.
This morning, we continue our study of the legislation designed to address this subject matter, Bill S-11, An Act respecting the safety of drinking water on first nation lands.
We will hear from the Minister of Indian Affairs and Northern Development and from officials from three departments this morning.
[Translation]
Before we hear from our witnesses, I would like to introduce those committee members present this morning.
[English]
On my left is Senator Nick Sibbeston, from the Northwest Territories; next is Senator Lillian Dyck, the deputy chair of this committee, from Saskatchewan; then Senator Romeo Dallaire, from Quebec; and Senator Joyce Fairbairn, from Southern Alberta. On my right is Senator Salma Ataullahjan, from Ontario; then Senator Stewart Olsen and Senator Rose-May Poirier, who are both from New Brunswick; next is Senator Nancy Greene Raine from British Columbia; and lastly, Senator Jacques Demers, from Quebec.
Members of the committee, please welcome our first witness, the Honourable John Duncan, Minister of Indian Affairs and Northern Development. He is accompanied by two officials from his department, both from the Regional Operations Sector: Gail Mitchell, Director General, Community Infrastructure Branch; and Karl Carisse, Senior Director, Innovation and Major Policy Transformation.
Joining them from the Department of Justice Canada is Paul Salembier, General Counsel; and from Health Canada, we welcome Michel Roy, Assistant Deputy Minister, First Nations and Inuit Health Branch; and Ivy Chan, Director, Environmental Public Health Division.
Mr. Minister, you have a presentation, after which the senators will have questions for you and your officials.
Hon. John Duncan, P.C., M.P., Minister of Indian Affairs and Northern Development, Federal Interlocutor for Métis and Non-Status Indians and Minister of the Canadian Northern Economic Development Agency: Thank you for the round of introductions, chair. I thank the committee for inviting me to speak to Bill S-11, the safe drinking water for First Nations act.
[Translation]
Mr. Chair, I would like to thank you and the Committee for inviting me here to speak to Bill S-11, An Act respecting the safety of drinking water on first nation lands.
[English]
In 2011, it is absolutely unacceptable that First Nations communities are not protected by the same standards for drinking water as other Canadians. A few weeks ago, National Chief Atleo stated before you that when children and their families are not able to trust the drinking water, there is no safety or security.
I agree wholeheartedly with his statement. Something must be done to rectify this situation. Members of First Nations rightly expect and deserve to have the same protections enjoyed by every other Canadian citizen. This committee has the opportunity and the power to get us there.
I would like to address some serious misconceptions about Bill S-11 that have been raised so that we can move toward a shared solution. Many have argued that there are significant infrastructure gaps on-reserve and that First Nations lack sufficient capacity to meet standards. They have stressed that these systems must be fully addressed before bringing standards into effect or starting regulatory development.
I agree with the comment by the Institute On Governance about waiting until all systems are fully brought up to speed: "If you wait for all these systems to be brought up, it will never happen. It will never, never happen."
We cannot continue to ask Canadian taxpayers to pour resources into a system that lacks clear, enforceable standards. Regulations could take years to develop. This government does not intend to wait for further studies and analysis to confirm what we already know. Regulations are necessary to protect the health and safety of First Nations citizens.
Linked to this is a broader concern of how these regulations will be developed and implemented. Many First Nations have expressed concern about the process; they want a role in the development and implementation of regulations. I commit to you today that we will work with First Nations to ensure that the proposed regulatory regime will be rolled out in a phased approach over several years. This will ensure that the regulatory compliance regime would come into effect when First Nations have the capacity to comply. If this bill is passed, we commit to work with First Nations organizations to plan the regulatory development phase.
First Nations organizations and the government will work together to develop implementation plans that identify capacity gaps, establish priorities for addressing these gaps and commit to timelines for achieving these objectives. The development of regulations and multi-year investment plans will support effective roll-out of regulations. This approach is flexible, accommodating, responsible and appropriate. I have no intention of making First Nations communities subject to laws that they cannot abide by, and I will not allow that to happen. That is why I will be supporting an amendment to the bill to make this commitment to working together explicit.
Another related issue that we have recently heard about is that First Nations should have the choice of whether to opt in to these regulations. This might be a sound approach for statutes that affect communities' economic growth, however it is unacceptable when it comes to health and safety. There will be no opting in to the protection of First Nations communities.
This bill allows for self-governing First Nations to opt in only because under self-government agreements, a First Nation has to either develop its own legislation or adhere to existing provincial or territorial legislation in the province or territory in which it resides. This is to ensure that there are protections in place for all First Nations members. To allow for an opt-in option in Bill S-11 would mean some communities would remain unprotected. From a health and safety perspective, this is irresponsible and unacceptable, and the government will not support it.
Another concern raised is the option of incorporation by reference in the bill. Many First Nations fear this will lead to provincial jurisdiction over First Nations lands. Quite simply, it will not. Many feel that the inclusion of this option means that existing provincial laws will just automatically be incorporated into First Nations regulations. This is not true, and this is not the intent of this bill. These regulations will be federal regulations.
We recognize that some First Nations communities, due to size and remoteness, have unique needs that would not be adequately covered by most existing provincial regimes. The intent was always to only allow for the incorporation of provincial regulations that fit the circumstance.
We have also heard the concerns raised by First Nations about liability. Chief Chamberlin from the Union of British Columbia Indian Chiefs said before this committee that "it is completely unacceptable that Canada looks to offload its liabilities on to First Nations."
That would be unacceptable if it were true. Bill S-11 will clarify the liabilities and responsibilities of all stakeholders involved in the provision of water and waste water in First Nations communities, including the Government of Canada and First Nations chiefs and councils. This bill will ensure clarity and certainty so that First Nations members know who is responsible for water management in their communities. Parliament will know the roles and responsibilities and clear accountabilities of federal departments and be able to hold us to account.
An issue that we have heard, especially from Alberta, is that this bill allows for the imposition of provincial water allocation and licensing on First Nations. This is not true. This was never our intent. To clear up this misunderstanding and ensure that our intent is clear, we will support amendments to clarify that this bill does not authorize the making of regulations respecting water allocation.
We have heard loud and clear the concern that this bill would infringe upon Aboriginal and treaty rights. I want to be very clear on this point: While there is not a non-derogation clause in the bill itself, in addition to the protections afforded to Aboriginal and treaty rights in the Constitution Act of 1982, this bill allows for the development of non- derogation clauses in the regulations. In my view, this is perfectly appropriate for enabling legislation, and we cannot be misled that it is not. This allows for the development of specific non-derogation clauses for each region, tailored to each region's needs and concerns with respect to Aboriginal and treaty rights.
Putting a non-derogation clause into the bill itself means that if any community in Canada has a concern about possible infringement, regulatory development for everyone in Canada could be stopped. Despite what you are hearing, there are several First Nations organizations that see the importance of health and safety for their people and want to move forward to develop regulations with us. It is unacceptable to allow others to stop them.
As for abrogation or derogation of Aboriginal and treaty rights under this bill in general, Senator Campbell eloquently stated the following previously in this committee:
. . . good science is good science. . . .
. . . We know what creates good water. We know the circumstances surrounding where good water is located. . . .
I have real difficulty with allowing somebody to say that because we have the right, we will not follow that science.
I agree; we are talking about health and safety. It is possible that under some circumstances where there is a serious health and safety issue, those Aboriginal or treaty rights could be infringed upon. However, I do not believe for a moment that there is a chief out there who would not agree that the safety of the community is paramount and that an infringement in such a case would be justified.
However, we understand that any possible infringement on Aboriginal and treaty rights is of serious concern to First Nations. That is why I will support an amendment to this clause to ensure that there are appropriate limits on the government in this regard.
A final issue continually heard before this committee is that there has been little or no consultation on this bill. I completely disagree. The discussions with communities and leadership have been underway on this issue since 2006. My department has provided funding so that representatives of both the leadership and technicians from every First Nations community in Canada could participate in engagement sessions throughout the country. We provided funding so that every region in Canada, through its regional representative organization, could undertake an analysis of the potential impacts water legislation would have in their communities and paid for the services of consultants to assist them with this.
Further, my officials have been across the country several times talking to regional First Nations leaders about the bill. Whether or not they choose to admit it before this committee, officials were there and talked with them about water legislation generally and then about Bill S-11 specifically. My political staff members have been engaged in good faith negotiations for months.
However, I also commit to you here today that this is just the beginning, as we will be undertaking further and more intensive consultations on a regional basis as we work with our First Nations partners in the development of regulations that this bill enables.
In the 2010 Speech from the Throne, this government committed to making safe drinking water and effective waste water treatment on-reserve a national priority. Bill S-11 is a fundamental component of that commitment.
Bill S-11 will provide us with the tools we need to work with First Nations to create a regulatory regime that will help to protect the health and safety of families living in First Nations communities. While challenges remain, we have made real progress in addressing First Nations water and waste water issues in collaboration with First Nations communities and organizations.
I ask this committee to do the right thing and take action. This bill addresses a basic health and safety issue and will finally allow members of First Nations communities to have access to the same fundamental legal protection enjoyed by other Canadians. This bill is how the government acknowledges its leadership role in ensuring that First Nations have access to safe drinking water.
Currently, standards are implemented through guidelines and protocols that are voluntary and lack a legal basis. Without enforceable standards, the government's investments in water and waste water systems to date are at risk of the deterioration of assets and a lack of accountability.
Bill S-11 is needed to ensure that continued and targeted resources are available to First Nations communities for the provision of safe drinking water. Without regulations, it is almost impossible for the government to develop comprehensive funding programs to address infrastructure and capacity needs. The regulations will be an anchor, guiding future investment decisions to address infrastructure gaps.
This bill must be passed now so that we can start the work with First Nations to begin developing regulations. The Crown's and First Nations' commitment to share and build solutions together has never been as strong. I call on everyone on this committee and in First Nations communities to work together in good faith to ensure that all First Nations men, women and children have access to clean and safe drinking water.
[Translation]
Thank you. I will do my best to answer any questions Committee's members may have.
The Chair: Thank you, Mr. Minister. That is great.
[English]
Colleagues, the minister has to be in Priorities and Planning at around 10:15 a.m., I believe. I would ask you to keep your questions as tight as possible.
Senator Sibbeston: Thank you, Mr. Minister, for appearing before us. You talk about some amendments, which is positive.
I also commend the government. I remember when the government came into being; Mr. Prentice was the minister at the time, and he said that they would deal with water. It is a commendable thing, and I applaud you for that.
Quite a number of witnesses have appeared before the committee in the last few weeks, and a big issue they have raised concerns their rights. At times, I wondered why they were not talking about water. They seemed to be only talking about their rights; they are very concerned that this bill is infringing on their rights.
The other question they raised was one of consultation. I appreciate that you have just become the Minister of Indian Affairs and Northern Development and do not have a long history with the department. However, Aboriginal leaders have said there has not been appropriate consultation, and you, in turn, have said that a great deal of consultation has taken place since 2006.
Have you asked your officials, or has it crossed your mind that they are perhaps not telling you the truth? Do you have any comments on that?
There seems to be a wide divergence. First Nations say that there has been no consultation. Consultation must be more than just one meeting to tell the people the government is proposing legislation. Consultation is more than that; it is a real give and take and certain accommodations must be made.
Are you satisfied, when your officials tell you that there has been consultation? Have you queried them? Are you satisfied that there has been good consultation?
Mr. Duncan: I am well aware of the commitments made since Minister Prentice was in place, and I am also aware that some senators have argued that this legislation seems to have fallen from the sky. That is incorrect, from the standpoint that this legislation flows from recommendations made by the Commissioner of the Environment and Sustainable Development — who is from the Office of the Auditor General of Canada — the Expert Panel on Safe Drinking Water for First Nations and the Standing Senate Committee on Aboriginal Peoples. We have had more than four years of discussions with experts and First Nations communities.
You did say that I am a recent appointee to this position. I can assure you that I have been involved in this portfolio since 1994. I was a critic in 1994, and had an ongoing relationship, off and on; I was critic right through until the 2006 election. Probably about half the time in that 12-year period, I was in opposition, so I became quite familiar with many First Nations issues. I know many of the players, and I know the department and how it operates — probably more than most new ministers coming into the position.
I can tell you that my political staff members have been very engaged on this file in good faith negotiations, and we have put a lot of energy into this. If we cannot make this work, based on how much good faith bargaining we have been doing — with the full knowledge of the Assembly of First Nations, AFN, by the way, and with their regional organizations that were designated and delegated by the national organization — then I do not know how we can do anything in good faith.
We have done everything we can to make this work. I told the Alberta chiefs — Senator Fairbairn would be interested in this — Treaty 6, Treaty 7 and Treaty 8 chiefs, when I was in Calgary recently that we will not ram legislation down their throat. We want to work collaboratively and make this work.
We have taken the same position with their technical people; that is who we have been meeting with since October. I gave them exactly the same message. I have had this conversation with the national chief and other regional organizations.
Do I believe the department on the consultation front? Yes, I do. Yes, it has happened.
We have been doing much on economic development — just to mention another of your points, namely, concern about Aboriginal rights. I went to a First Nations' energy conference in British Columbia about two weeks ago. One of the things that struck me was the message that was resonating. When a First Nation is approached with a business proposition, they have two choices: They can talk to their rights and title lawyers, or they can get some good business advice. People are starting to make the choice that they would rather get some good business advice than talk to the rights and title lawyers because that just gums everything up.
This water legislation is essential and crucial, and we are doing everything we can. If you want to protect a water source on-reserve, then obviously you will have the potential for someone's existing Aboriginal right to be infringed upon slightly. It would be inappropriate for the chief and council not to protect the community water source. In so doing, they might have to infringe on some Aboriginal right. That is just reality, and that should not be allowed to get in the way of progress.
The Chair: I will exercise the authority of the chair. Senator Dallaire, please ask one question on the first round.
[Translation]
Senator Dallaire: Before I ask my question, I have a point I would like to raise.
Both the minister and his officials have indicated that amendments to this bill will be tabled. As a result, I would assume that we will be hearing the views of stakeholders from the other side of the fence. Will we, for instance, be providing the chiefs with an opportunity to provide their advice on the proposed amendments? Will they be invited to testify on the extent to which the amendments make the bill more acceptable? I would take it as a given that we intend to hear their testimony before we move on to clause-by-clause consideration, right?
The Chair: Not necessarily.
Senator Dallaire: I really must insist here. Amendments are to be tabled. Therefore, if we are to make an enlightened and transparent decision based on the fundamental values of the people affected, we have to be able to measure the impact of these amendments on those very people. We are scheduled to hear from the department and I think we should extend the same opportunity to First Nations.
The Chair: The steering committee has decided that the final witness will be the minister and his officials.
Senator Dallaire: The steering committee is made up of you, Mr. Chair, and Senator Brazeau.
The Chair: Senator Brazeau and myself.
Senator Dallaire: Are you the ones who decided not to hear representation from aboriginals?
The Chair: Please ask your question because the minister —
Senator Dallaire: Yes, all in good time.
The Chair: Well, we can address that later.
[English]
Senator Dallaire: Mr. Minister, in 2006, the Plan of Action for Drinking Water in First Nations Communities was launched, and we have had a series of exceptionally positive evaluations and annual reports since then on how it is working. It has significantly reduced the problem of safe drinking water within the communities. The government will invest $330 million until 2012 to continue to advance that program.
In 2007, the expert panel said that the funds would be identified to meet the resources to establish the infrastructure needed for the implementation of this legislation.
Yes, it is true that someone said that if we waited for all of that, we would never see it. However, if we are advancing and the program is moving, why bring in such a significant hammer to continue the program and, in fact, to continue to monitor it and advise the aboriginal communities on how to ensure its implementation and guarantee the funds needed to do the job? Why bring in such a Draconian piece of legislation that touches areas that I believe set up the Aboriginal peoples to not being able to meet it because they have absolutely no control of the funds?
You are the one coming in with the hammer, and you are the one controlling the funds. Your functionaries have given us no information on the amount of the delta. You might have invested $2.3 billion over the last five years; however, if the cost is $8 billion, we are nowhere near meeting the requirement. Therefore, can you ensure that the regulations will get you more money — or perhaps you will get more money — to bring in the infrastructure to implement this bill?
Mr. Duncan: We accelerated spending on water and waste water infrastructure, as you pointed out. However, without standards, it is very difficult for us to know whether we are investing in the appropriate infrastructure or not. The same question comes up for capacity. We need people who are trained in these systems to operate to certain standards. Some of them are already incorporating, at the local level, municipal or provincial standards by reference. However, it is a hodgepodge. It is problematic to continue to make investments when we have to make up the standards or do not know what they are.
We do not view this as Draconian or as a hammer. The First Nations that we are working with regionally agree that this is an essential way to go. I see this is an essential move forward, and I cannot believe that it is getting gummed up when it is clearly all about safety and protection for First Nations citizens.
Senator Demers: I have been hearing about this for weeks and have never once heard that this is a good bill rather that it is suicidal, impossible and unacceptable. Your presentation was excellent. You said that you are negotiating in good faith.
Is it possible that some First Nations people are not on the same wavelength? I know that you want to make some amendments. Do you feel comfortable that we are heading in the right direction? According to grand chiefs and high representatives, it seems a total disaster.
I do not mean to embarrass anyone. You have a higher level of knowledge on this matter than I do.
Mr. Duncan: We are aware, from reading the transcripts, that this committee has been receiving a very one-sided view of the way things are going. We have been working collaboratively with the technical people from Treaty 6, Treaty 7 and Treaty 8 groups from Alberta.
You are correct in concluding that everyone does not have the same view. This committee has managed to capture a prevalence of negative views. That happens sometimes.
It is easier in First Nations politics to be aggressively contrary to something than it is to be supportive. That is an observation that I stand behind. It is something I hope we can change. We are trying to change the channel and are still committed to changing the channel, and we do need this legislation.
Senator Raine: I am particularly interested in the comments about the need to develop more capacity. I know universities and colleges across the country offer water technology courses. Many of those programs require a grade-12 certification. Many people are currently operating water systems or may be in a position to operate water systems and work in that field because they live nearby, yet they do not have a grade-12 certification.
Is there a way for them to have their experience grandfathered in to get into the technology programs?
Mr. Duncan: That is a technical detail to which I am not qualified to respond. You are pointing out an important dimension here. We tend to focus on infrastructure. However, the operator, such as the record keeping, the sampling and all of that, is often the risk to the system.
That was the failing in Walkerton, for example. Everyone knows about Walkerton. It was not the infrastructure but the operators and the operations that were the problem. We know that we need to make significant investments in training our operators. We have some good examples with the Circuit Rider training where we centralized training and expertise.
We also have some new opportunities in technology wherever there are First Nations with broadband access. That is becoming more prevalent. Along with Bell Aliant and the Province of Ontario, we just announced full broadband over the next couple of years to all the fly-in First Nations in Northern Ontario, for example. That will open up new possibilities.
First Nations in Alberta will be on a centralized system in a few years. It is one we are investing in, as a department, and it will accomplish the monitoring and record keeping remotely. Any time there is a problem, they will be able to jump on it and deal with it.
Those kinds of things are helped immensely if we have national standards.
Senator Dyck: I will go back to this concern about consultation and accommodation. It seems that we are in a "he said-she said" situation where the department has one version of consultation and accommodation and First Nations organizations and witnesses have another.
As Senator Demers has noted, all the witnesses thus far have said that the bill is not good and that they have not been consulted and accommodated. Today you are saying that you are committing to work collaboratively and you have worked collaboratively with people from Treaty 6, Treaty 7 and Treaty 8. Nonetheless, we have had witnesses from the Assembly of Treaty Chiefs of Alberta from Treaty 6, Treaty 7 and Treaty 8 who said, "Our main concern is that Canada has snubbed repeated offers from First Nations in Alberta to be partners in developing drinking water legislation."
They are saying that they have not been involved in the drinking water legislation.
Mr. Duncan: I will get my department official to round out more about the consultation. However, I met with the Treaty 6, Treaty 7 and Treaty 8 chiefs in Calgary. I am trying to think when that was. It was not that long ago. I received that same speech. I explained the important role that their technical people were playing and that I was satisfied that the engagement was happening and had been happening.
It is not always clear that everyone knows what everyone else is doing. They have played a pivotal role, and they have not been doing it in isolation from the AFN or from the other regional organizations across the country. British Columbia Assembly of First Nations, the Assembly of First Nations of Quebec and Labrador, the Atlantic Policy Congress of First Nations Chiefs, et cetera are all interested parties. They have all been kept abreast of what these good faith negotiations have been accomplishing since October.
I am surprised when I hear statements such as that.
Senator Dyck: That reinforces the need for them to come back and comment on what we have before us now.
Senator Lovelace Nicholas: I spoke to a minister of Aboriginal affairs in New Brunswick. I saw a letter from the Assembly of First Nations chiefs in New Brunswick. They do not like this legislation. They feel as though it is being rammed down their throats.
However, since we are all arguing about consultation, could you give us names of the communities with which you consulted and the people with whom you consulted?
Mr. Duncan: I will ask Mr. Carisse to talk about that, but I want to finish off the previous conversation.
It is my understanding that we are not supporting the bill without amendments. We are now talking about amendments. I gather there were frustrations prior to my being in office.
The chiefs have been excellent to work with and are still working with us in good faith. I believe that is the way we will get to the finish line on this bill.
Senator Dyck: You did not answer my question.
Mr. Duncan: No. I am asking Mr. Carisse to address your question.
Karl Carisse, Senior Director, Innovation and Major Policy Transformation, Regional Operations Sector, Indian and Northern Affairs Canada: I am more than happy to answer. I will go quickly because I know the minister has to leave, but we can revisit this. I will leave it up to the chair as to whether you would like me to answer now.
The Chair: Minister, do you have to leave?
Mr. Duncan: Yes, I just received the word.
The Chair: On behalf of the committee, I thank you for appearing here this morning. Hopefully, whatever consultation process is taking place will continue with First Nations and your department under your leadership. Amendments can be made right up to and into third reading.
Will your officials stay to respond to further questions?
Mr. Duncan: Yes, they will.
The Chair: Thank you again, Mr. Minister. Continue, Mr. Carisse.
Mr. Carisse: I will give a bit of scope to the consultation process and to add to what the minister said earlier. We started in 2006; an expert panel went out to meet with the organizations or the people who wanted to talk to them. In 2007, there was a workshop in Ottawa based on the findings of the expert panel. We invited people from across the country — technicians, different representatives — to come to talk about what was said.
We went across the country for the first time in the spring and summer of 2008. We approached all the major organizations in each region, starting from the Atlantic with the Atlantic Policy Congress of First Nations Chiefs, the Assembly of First Nations of Quebec and Labrador, the Chiefs of Ontario, et cetera, all the way to B.C.
It is around that time in the spring and early summer that they have their annual meetings before the AFN Annual General Assembly at the beginning of summer. We talked with them. The AFN were also there with us at the time. They were at that meeting in 2007.
I made the presentations to those organizations. There is an idea that there is a regulatory gap that needs to be filled, that we need to create a legislative framework to begin with. We told everyone that we would be doing more formal engagements in the months ahead.
Those formal engagements happened in February and March of 2009. At that time, it was a one-day event. In retrospect, two or three days might have helped. However, to prepare for that, we provided a discussion paper that was sent to every chief and council across the country, as well as tribal organizations and technical organizations. They received this discussion paper. The AFN was at these sessions as well.
We provided funding to each and every community in Canada to send their chief or a member of their leadership, as well as a technician, to come to talk with us. We made the same offer to tribal councils and First Nations technical organizations. We were prepared to meet with those people; we had the funds to meet with over 1,200 people, should that happen.
The total participation was around 700. There was participation by 550 First Nations, which I think is good for that type of process. At that time, we also provided the funding to all those regional organizations to come up with their own assessment of what a legislative framework would mean to them.
Of course, we received some correspondence from the chiefs and others. We decided to go back across the country again to meet with the leadership from those regional organizations. Until this day, we keep doing this. For instance, myself and Ms. Chan drove for an hour and a half from Vancouver to Harrison Hot Springs to meet with one of the witnesses who was here specifically to talk about water legislation, what regulations would mean to him and his organization in B.C.
That is the extent of it. In all, we have spent about $2 million on engagement up until now.
Senator Dallaire: You say that you did all this consultation, yet the legislation that you produced is so adverse to them; there seems to be a disconnect.
Although you state that you did all that consultation, unless I am mistaken, there are about 1 million Aboriginal people in the country, which is approximately four times the size of Europe. They are deployed in about 658 different locations.
If I look at my little village where I have my summer cottage, they tried to bring in a whole new system of water purification. They spent months debating what should be done and how it should be done just to meet the processes of not only getting the right infrastructure, training, and operations and maintenance — O & M — money, but also how they would sustain it.
You are telling me that you covered 658 places in this incredible country — which has the most complex places to access sometimes, as I know from personal experience — and you think you have covered the bases in the way that you have done it. What criteria do you use to tell us that you have actually done that; and is that enough?
We do more consultation with Canadian International Development Agency, CIDA, in international development programs than I can assess what you have done across this country for the First Nations.
Mr. Carisse: The issue at hand is we did not go to all the communities, obviously. Spending that type of money to do that is prohibitive. We would rather spend it on systems.
However, we consulted and went out and engaged on the legislative framework. The minister said earlier that this is just the beginning. Where the true consultation and engagement will happen is where we develop regulations should this bill receive Royal Assent. That is where we can start talking. For instance, Atlantic Canada has 33 communities. We would have to look at the situation of all those 33 communities. That is when the nitty-gritty detail would happen.
This is only the first stage. Those four or five years of engagement were to bring us to a piece of legislation that can be enabling, to bring us to do more engagement and to do that detailed engagement afterwards for each and every community where it is needed.
Gail Mitchell, Director General, Community Infrastructure Branch, Regional Operations Sector, Indian and Northern Affairs Canada: If I might add to that, on broader planning for infrastructure investments, the department works closely with communities on a yearly basis to develop plans and on an ongoing basis throughout the year to discuss issues such as O & M and required capital investments.
It is important to separate the broader question of establishing enabling legislation in that day-to-day technical support that the department provides to communities. We work with them to provide adequate O & M for systems, which is an ongoing activity.
Senator Dallaire: You cannot bring in legislation if you do not have the funding guaranteed. You are bringing in legislation with a significant hammer on people to play by the rules and establish standards. However, you have not even proven yet that you have provided the resources for them to have the infrastructure, to maintain it, to train the people and to sustain it.
If someone walked in here and said that they will add another $5 billion to implement this legislation to make damn sure it works, then you would have everyone on board. However, all we have is you saying that, yes, afterwards we will sort it out. Even the minister has not indicated that he has asked for new money to implement this legislation.
I cannot believe that happens. I come from a department where you would not even get to a director general with a system such as that.
Senator Raine: I would like to point out that in the analogy that Senator Dallaire mentioned in his little village, the consultation they did in developing their system could not have been done in the absence of regulations regulating that system.
Now we are developing the framework for the regulations. I heard very clearly the minister commit to working together collaboratively in the regulatory development process. Maybe you could confirm that.
Ms. Mitchell: That is the proposed way forward, namely, that we will work with organizations across the country to develop regulations that will be appropriate to those regions. Our intent is to move forward in that way. That is our plan.
Senator Brazeau: My question is for Mr. Salembier. First, I would like to correct my colleague on the number of Aboriginal people in Canada who would be affected by this bill. It is not 1 million. There are approximately 750,000 First Nations citizens, of whom half live off-reserve. We are looking at roughly 375,000 people in this country.
Having said that, I have been involved in this business for quite a number of years, and this term "consultation" always pops up. INAC will give money to First Nations communities so that they can be made aware of the development of pieces of legislation, and consultation is a two-way street. I have also heard that many First Nations people at the grassroots level, even though some communities receive money, are not consulted by their own leaders.
We hear different terms — consultation, engagement sessions, information-sharing sessions — and, to me, it is a lot of hairsplitting. What is the position of the Department of Justice Canada when it comes to the term "consultation"?
I would like to reach a point in time in the future where perhaps the word "consultation" would be put directly into contribution agreements so that everything is made clear from the get go. If INAC will provide financial resources for consultation, why do not we say that? Many chiefs who have appeared before this committee said that they accepted the money, but it was not really consultation.
What is the position of the department in that respect?
Senator Dallaire: I do not remember that.
Paul Salembier, General Counsel, Department of Justice Canada: I am not at liberty, per se, to provide the position of the Department of Justice Canada. I can give you an overview of what the courts have said on consultation. The problem with the term "consultation" is that it is one word with many meanings, and it is always fact-specific.
On legislation, the Supreme Court of Canada, in its R. v. Sparrow decision, determined that consultation was a factor to be looked at in determining whether an infringement of an Aboriginal or treaty right is justified in the circumstances. They will also look at the objective of the legislation and whether it infringes on the Aboriginal treaty right to the least degree possible to attain those objectives. Consultation is one factor that the courts will look at in determining whether an infringement is justified.
The courts say that what constitutes consultation is fact-specific. In some cases, it depends on the degree of infringement and the degree to which the right is alleged, as opposed to proven. They might say that it is at the lower end of the scale.
In other cases, where a way of life might be massively disrupted, serious accommodation might be required as an element of consultation. One cannot go in saying, "Here is what we plan to do. Thank you for your thoughts. We will do it anyway." One must go in saying, "Here is what we plan to do. Please give us your reactions. We want to see how we can do this in such a way as to minimize any infringement on your Aboriginal and treaty rights." Those are the two ends of the scale.
In each case, it will always be fact-specific. In this bill, there are very few actual rules because it sets up a framework to develop rules in the regulations. In looking at rules that might restrict the use of reserve land to protect water sources, the courts will look at the degree of consultation there rather than looking at the development of framework enabling a government to develop those rules.
Senator Lovelace Nicholas: According to your answer, it has to do with money. We are talking about a watershed. What will happen when they can no longer afford to regulate these water systems?
Ms. Mitchell: The issue of funding is foremost in people's minds. It is important to remember that communities do have water systems now. They are operating them and providing services to their members.
The challenge is around capacity, and the minister spoke to that quite eloquently. These challenges are there now; they will be there after regulations. We, as a government working in partnership with First Nations, must put in plans to manage those capacity gaps, whether at the infrastructure level or at the level of the operators. The regulations will add a framework of predictability. They will add clarity of rules and responsibilities. That clarity is lacking at the moment.
We have these challenges now. We try to face them by working with communities and technical organizations at the regional level to identify strategies that will enable better capacity building. The regulations will bring more rigour to the process. The Government of Canada invests a significant amount of funds on an annual basis and has been doing so for many years. It is expected to continue to invest that money over the coming years.
Without a regulatory framework, what measures do you put in place to make adjustments? That is the challenge we face.
Senator Lovelace Nicholas: A challenge would be to solve the problem, not band aid it.
Senator Dallaire: It is interesting that we will bring in standards for Aboriginal water at the federal government level when we only have guidelines for the rest of the country and that the standards are in fact established at the provincial level.
A federally based organization will impose standards to be worked out with the provinces when it does not have the determination to impose standards on the country. The country's guidelines are left at the provincial level. It is going backwards in achieving that. We want the Aboriginal people living in the territories and provinces to heed standards established by the provinces. That is complex in our arcane, confederational system.
What is the argument behind wanting to bring in standards and such a pervasive piece of legislation? A variety of elements of the bill go beyond establishing standards to be adhered to. Many of your clients say that this bill goes way beyond trying to establish standards. Some of them say that it should be scrapped. Other say, "Wait a minute; it is not ready."
We have 49 Aboriginal Nations sites that have significant problems. However, that number dropped massively over the last few years. It is being managed. The Auditor General may not like your methodology. What of it? You are a department. If you are worried about getting fired by the Auditor General, that is another issue.
The Auditor General does not like your style of management; however, you are still working. The bulk of your clients said, "At least, slow this thing down. Wait it out. Let us get a bit further down the road with the engineering and strategy assessment, so that we have a better feel of the funding delta. Then, let us bring this thing in."
What is the urgency of doing that, apart from the Auditor General on your back, when you are essentially controlling the scenario?
Ms. Chan, are you the director general?
Ivy Chan, Director, Environmental Public Health Division, Health Canada: I am Director, Environmental Public Health Division.
Senator Dallaire: What happened to the assistant deputy minister?
Ms. Chan: He left with the minister.
Senator Dallaire: We were told that the functionaries would stay. An ADM is still a civil servant.
The Chair: Ms. Chan is capable, senator.
Senator Dallaire: Ms. Chan is not an ADM or a DG. In terms of what we are talking about, an ADM or a DG is required — nothing against you, madam.
What is the urgency, apart from the Auditor General being on your back?
Ms. Mitchell: I have been working with INAC for 17 years. The process of legislation is often quite a winding road. With respect to this legislation, it does take time. To coincide a regulatory framework and a long-term investment strategy is an important objective. Therefore, we have to keep moving forward with this legislation to be positioned to really propose a compelling, comprehensive plan as we move into the future and as we receive the results of the national assessment.
If the legislative process grinds to a halt, then developing a comprehensive plan is really at risk. As most jurisdictions in Canada can demonstrate, that regulatory framework allows you to establish very clear objectives around performance; it allows you to understand what type of technology solutions are appropriate; and it gives you some certainty about roles and responsibilities. At the moment, I would say that all of those issues are very challenging because we do not have clear roles and responsibilities, though we have made some progress. We do not have the capacity to take measures that have the weight of a regulatory framework behind them.
Why move now? From where I sit, as a public servant advising the minister and his staff, one must keep moving forward and keep that process going. I think it presents some risk to halt and wait until other things are perfectly aligned.
Senator Dyck: My question revolves around the safety issue. Senator Dallaire mentioned that the department, in a previous appearance before the committee about a year ago, said that they reduced the number of high-risk communities from 93 to somewhere in the region of 48 or 49. Therefore, though it might not be very efficient, it is clear that we have in place now some mechanism that does assess risky situations and puts remedial actions into place.
We will not be leaving high-risk communities high and dry, as it were, if this legislation does not pass. I am surprised that there seems to be pressure to push it through because I do not see how we are leaving communities at risk.
Could you explain why it is such a safety issue?
Ms. Mitchell: The C.D. Howe Institute recently issued a report. I think the author of that report appeared before the committee. It said that there is an integration of a series of factors with safe water systems. The regulatory component is one part of that. Another important part is the ongoing operation and maintenance and the capacity of the people who run those systems.
We have been trying to align the various interventions that the federal government and First Nations currently make in the delivery of water systems, so that, ultimately, we have a coherence and comprehensive approach to managing water.
You are correct in saying that we have managed to maintain systems and achieve some progress. We continue to feel that we are missing one very key pillar in that long-term strategy, namely, the regulatory piece. To position us to think about water and waste water services over the long term, we cannot think of it without that regulatory component in place. That long-term strategy is what we are trying to deal with here.
Senator Dyck: All of the witnesses who have appeared would have agreed that regulations are a pillar in the delivery of safe drinking water. However, the expert panel itself said that before the regulations are developed, we need the proper physical infrastructure as well as adequate human resources. The C.D. Howe Institute report that you just mentioned says the following:
Despite having the most detailed and onerous regulatory regime for drinking water in the world, the US accounted for 23 of the 70 disease outbreak case studies mentioned above.
Therefore, it is quite clear that having regulations alone will not increase public safety. In Canada, the two most recent cases were the Walkerton situation and that of North Battleford. They are covered by provincial regulation in both instances. They had regulations, so it was not the absence of regulations that decreased public safety. It came down to not having the proper protocol via the operators of the system to ensure that the water was adequately treated. It had nothing to do with the regulations, so regulations alone, in my view, do not give us safe drinking water.
The Chair: I think most people would agree with that, senator. Do you have a comment, Ms. Mitchell?
Ms. Mitchell: No.
Senator Sibbeston: Could INAC, the Department of Justice Canada or the minister not have come up with some legislation that was more imaginative or that recognized Aboriginal people's relationship to land, waters and so forth?
I have been here for 11 years and seen a lot of legislation dealing with First Nations. All of it has been pretty progressive in the sense of giving to First Nations powers that had been in the hands of the minister provided under the Indian Act. I see this legislation is all about the Governor General making regulations on the recommendation of the minister. It really puts all of the power in the hands of the minister, as approved by the Governor General.
Could it not have been done differently, much like the progressive legislation we have seen before?
Democratic parliaments like to have legislation where they know what is happening. When we have legislation such as this that provides for regulations, it really takes the powers away from legislators and — Heaven forbid — puts it into the hands of civil servants and bureaucrats such as you. Who knows what you people will do, particularly with First Nations in our country who have had a really tough history of being unfairly dealt with by the federal government?
Why must this water act be like this? Could you not have used more imagination? Could you not have provided more information on what the regulations would look like, their goals, objectives and so forth?
Do you have draft legislation that you could show us to give us an idea of what you are up to, as it were?
Ms. Mitchell: On the question about whether the bill could have been more imaginative, the bill is really intended to be an enabling piece to provide for authority to develop regulations. The regulations themselves will be the details of how systems will be managed. That is where we will really work out the details. As the minister has said and as we have committed to as well, that will be done with First Nations organizations across the country as we move forward.
This is an enabling piece of legislation that is intended to be fairly straightforward. One can argue that point, I suppose, but that was the intent. You then move from that to develop the regulations.
Senator Sibbeston: We hear that there are amendments. Are they available to us so that we can look at them? Are you prepared to give us the amendments proposed by the department and bureaucrats?
Ms. Mitchell: I am in your hands on the matter of how to proceed with the bill at this stage.
Senator Sibbeston: Mr. Chair, it is important. Maybe my concerns have been addressed, and I am just wasting time. At some point, we need to know what the amendments are.
Ms. Mitchell: It is my understanding that when the clause-by-clause consideration commences, the sponsor may move amendments to the bill.
The Chair: I think the minister has pointed out, although not explicitly, the amendments that are coming. I do not know how many are coming, but there have been lengthy negotiations, discussions, consultation and collaboration with APC, AFNQL, AFN and Treaty 6, Treaty 7 and Treaty 8, I believe. They have been in discussions, and are still in discussions at this time.
The question, colleagues, is safe drinking water. How long can you procrastinate? We had 193 high-risk communities in 2006, as Senator Dyck pointed out. In 2007, it went down to 97. When will we do something? The debate could go on forever, and I think there has been goodwill.
I have been here 18 or 19 years, and I have never yet seen a situation where the government or a minister or a department has been prepared to sit down and make amendments to any legislation that they have drafted to the degree that this appears to be taking place. There is a possibility that at third reading, amendments are possible. If an amendment came from First Nations that really required attention, I would even be prepared to move it.
I do not think anyone around this table, as far as I can speak for senators, wants anything but the best for our First Nations people. They want safe drinking water. They are entitled to it. Right now, there are merely guidelines and no regulations. That is why we went out of control in 2006.
I will not sit here and blame any government because we know there was the Mulroney government, the Chrétien government, the Martin government and now the Harper government. Maybe I should not be using that term, because there is a controversy about using the name of whose government it is.
We cannot let perfection become the enemy of the good. We have to get on with this for the sake of the constituency that we serve. There is always politics in everything, even in my marriage. The fact is that we have heard from various groups somewhere along the line; this was not one-sided.
I look at the opposition now because I never went out as chair to seek out people who would jump up and down and agree with us. I think you have to agree that we were objective. We took the witnesses as they came; we went to the First Nations communities, and they presented. The minister and the department have reacted. They are reacting by way of amendments, and I think that we have to get on with this. It is enabling legislation for those regulations, without which, I honestly believe, we will jeopardize the lives and safety of our Aboriginal peoples, especially the children.
Senator Dyck: Since you mentioned me specifically, I felt that I should comment. I did mention that the high-risk communities had been reduced. I did not use it as an argument for pushing this legislation; I was using it as an argument to say that the department does have policies, actions or remedial actions in place now to look after high-risk communities so that we are not leaving communities at risk. I wanted to make that clarification.
You also brought up the concept of marriage and there being politics in marriage.
The Chair: I will never do that again.
Senator Dyck: I was married at one time, so I understand that very well. However, it occurred to me that the relationship between INAC and the First Nations communities is like a bad marriage, in that INAC has the power of the male in the old-style marriage, and First Nations people are like the old-style wife who did not have equal power. It is like a bad marriage, and we have to fix that marriage to make the power base equal between the two partners.
The Chair: Believe me, my wife, Margaret, controls the show at home.
Senator Dallaire: I applaud the efforts of the department, having listened to the testimony that considers that amendments are required. That is certainly the minimum that has been called for by the witnesses who have come before us, including non-Aboriginal witnesses who are experts in the field. We have had them come to speak to us about their concerns about this legislation.
I have a marriage contract in Quebec, so that side is sorted out, have no fear.
However, on bringing in the amendments, it would be highly inappropriate with this piece of legislation that has so much controversy attached to it and dimensions that are not insignificant — a non-derogation clause is not something I read every day; I am a soldier, not a lawyer. If you bring in amendments, Mr. Chair, I think we need a significant amount of time to read and understand them and then be able to discuss the amendments as we go through the clause- by-clause consideration.
I strongly recommend that this list of amendments does not appear tomorrow night when we start clause-by-clause consideration because I will not be able to debate. If I am not debating, then that means I am not here. I do not know about my colleagues. If you want us to debate and be transparent and so on, get it to us so that we have time to look at it.
I end with my previous discussion, although it was taken up already in the steering committee, that I still would like very much — because God knows the nature of these amendments, and certainly we know the dimensions of the concerns of the Aboriginal people about the legislation — that we have at least one last crack at hearing from First Nations such as AFN, for example, with whom the government is seemingly consulting. Let them also come and give us a last blurb here on the non-executive side of their perspective of the amendments. Then we can carry on from there.
The Chair: Have you any comment as far as the availability of the amendments, Ms. Mitchell?
Ms. Mitchell: We are doing all we can to have those available. We are working with stakeholders to discuss those potential changes. They need some time to consider them as well and provide us with some sense of where they fit on that spectrum of acceptability.
The Chair: You know we intend to go to clause-by-clause consideration tomorrow night. Is there any way we can facilitate a situation that would give senators a bit of background? I consider the legislation urgently needed. Is there any way we can facilitate the request by way of a private briefing or something of that nature?
Senator Brazeau: If I understand correctly, the amendments that are forthcoming are being done because the department is negotiating and discussing with stakeholder groups. Is that correct?
Ms. Mitchell: That is correct. We have had conversations with various stakeholders who have been before this committee to understand their issues precisely so that we can propose amendments that have a likelihood of being acceptable.
Senator Brazeau: There is still a level of cooperation and collaboration with First Nations groups to incorporate some of the concerns into those amendments, is that right?
Ms. Mitchell: That is right.
Senator Dyck: You say that you are meeting with stakeholders, having discussions and giving them proposals. The big question is whether it is really a collaborative effort. That is the issue we need to have addressed. We only hear from your side that it is collaborative, and we do not know whether it is truly collaborative unless we hear from the other side.
The Chair: I do not mind discussing it with the full committee. The steering committee, working with the department and the minister, determined that the minister should be the last witness. We could have witnesses ad infinitum. We could call back everyone across the country. Let us use any organization as an example, such as the Canadian Labour Congress or AFN; they should have the last word. In this case, the minister has clearly indicated that amendments are coming. There are changes that respond to what First Nations are presenting. The director general has indicated that some of these discussions are still taking place.
It is fair that the minister, with his officials, has the last word. That has taken place here today. This is no surprise. We have discussed this at a level in the committee. Therefore, I make no apologies. Everyone who wanted to appear has appeared. We have tried to facilitate everyone. We have not restricted anyone. In the spirit of moving ahead on this, we have heard from the last witness.
Senator Dallaire: Last week, we agreed to ram through nine witnesses in two hours, each of whom could have taken up to an hour. We had a whole slew of people, each with very limited time. We went overtime to try to handle it. We wanted the minister to be the last witness. The minister establishes when he is available, and we work our schedule around that. The minister came and stayed for 45 minutes, while we are here for three hours. He spent over 20 minutes giving his briefing, and we barely got a round of questions.
The last word is not with the legislator. It is with the people of the country. The last word must remain with those affected by this legislation and not be by the person responsible for its implementation.
It would be quite proper that the Aboriginal people have the last word with respect to our deliberations. Then we have enough time to look at the amendments and then go to clause-by-clause consideration. No one told me that we cannot work the week of March 22. I am not being facetious, nor flippant; I am trying to push a point.
The Chair: I hear what you are saying. However, we have another agenda to proceed with on education. The fact remains that the minister was here at our request. We determined what timelines to work by, and we asked him to come. He was here for 45 minutes, and we would have liked him to stay longer. However, the dictates of his office said that he had to be at a cabinet meeting. I cannot argue that point.
The various organizations have had ample representation. Never have I seen things so one-sided. We never stopped the train. We kept bringing them. There is no point in bringing people who say the same thing. The minister and the department have responded by way of amendments.
In final discussions with the stakeholders, this will be fine tuned so that everyone is happy. We are not seeking perfection; we are seeking a solution. I call on Senator Raine.
Senator Raine: This is a Senate bill. We will improve it and make it as perfect as we can. In this case, the other place has the sober second thought. The process is not finalized. There is an opportunity for more witnesses and presentation as it moves into the other chamber. We need to move forward.
One of the technicians who appeared told the story of how his business was to train water operators. When he offered a nearby First Nations operator the opportunity to be trained at no cost at his convenience, the operator declined saying that he did not want to know what he was doing because then he would be responsible. If there were regulations, that person could be removed and a person who does want to know what they are doing could be put in place. That would likely result in safer drinking water.
This is a big anomaly. Ninety-nine per cent of people working in this field are doing it with the intent of having clean drinking water. The regulations will help us get there.
Senator Dallaire: The conversation continued to say that the young operator did not want the job because he did not have the tools to be able to do it. INAC provides the tools for him to do his job. That is why he backed off. He had no guarantee that he would have the tools to implement it, even if he knew what to do, and then he would be held accountable.
Senator Raine: Will these regulations help at the ground level with those kinds of situations?
Ms. Mitchell: Absolutely. It has been pointed out that regulations alone are not the solution to the provision of safe drinking water. They provide a context and clarity around roles and responsibilities. It is one piece of an integrated whole that will allow us to be much more confident than we currently are around the provision of safe drinking water in First Nations communities.
Senator Dyck: This is a Senate bill. It is our role, as members of this committee and senators, to stop the process now rather than to leave it to third reading or to the House of Commons. It is our responsibility to make this bill as perfect as it can be.
The bill should be stopped now. We have heard from the First Nations witnesses and other bodies that this is not a good bill; it will not increase the safety of drinking water on First Nations. It must be amended in real consultation and with writing done by the First Nations.
Are First Nations handing to you an amendment that says, for example, that they would like the development of regulations to be stated in the bill and that it will be done in a manner that satisfies their definition of consultation and accommodation? Can they impact the writing of the amendments in that respect now?
Ms. Mitchell: The minister and his staff, with support from the department, have been working very closely with various stakeholders. Many discussions have taken place about the potential wording of different provisions. At different times, we have received suggestions on how to re-craft or redraft various provisions.
The Chair: Colleagues, in view of the fact that consultation is still taking place, the information will be available by noon tomorrow. I will see that all senators have the amendments by noon tomorrow so that they can go through them.
This is not the last word, either, as third reading can facilitate amendments in the Senate. If there are any amendments that should arise, that would be an appropriate time to move them. I am sure there will be debate at third reading.
As I indicated earlier, I want to do what is right for First Nations people. I do not want to turn this into a political football. Let us make it work for them as best we can. If we do not get regulations, we will go back down the road of having high-risk scenarios. This has to be done. This is urgent. If I were sitting at home with no drinking water and a bunch of senators and politicians in Ottawa were arguing about this, that and the other thing, on who should come first and who should come last, I would be concerned.
It is our responsibility. We represent the people. Each and every one of us, in spite of the fact we are not elected but appointed, represents the people under our parliamentary system.
I have no one else on the list.
Senator Dallaire: I wish to make a statement and a motion. The statement is that I am in total agreement with you about bringing safe drinking water. The methodology of our system of legislation, where we have the discipline of our exchange of ideas to produce good legislation for our country, is fundamental. The fact that we want to ensure that full debate has happened is not a statement that we do not want the legislation to pass. Putting it another way, we want people to get the regulations in time for the safe drinking water.
If the plan they have been working on for five years was crap and you were wasting $2.3 billion, we would be the first to agree that someone had better get a grip on this. That has not been the case. Therefore, it is not as if the whole place is going up in smoke overnight; it is that we want to ensure that we have pushed it to the limit of making it effective. If I ever hear any comment coming out of this that we have been stalling this bill and, in so doing, preventing First Nations from getting the regulations they need for safe drinking water, they will be in for an open fight. That has not been our intention in any way, shape or form.
Furthermore, we respect you enormously because you have been so effective as chair of this committee. It is this committee that said that we had better not bring in legislation unless we identify the resources needed to implement the damn thing. We are going against our own original recommendations that have significant support, if you remember, because it was a damn good report.
That is my statement for the record and for the staff members. If the amendments are available to us by noon tomorrow, that will give us time to look into them.
I wish to put forward a motion. I move that before we go clause by clause tomorrow night, we have a representative of the Aboriginal peoples come and tell us what they think of the amendments in order to give us a balanced perspective on what the department is offering us to enhance this bill and to make it a better bill to ultimately pass through the process. That is my motion.
The Chair: Senator Dallaire, are you moving that AFN be invited to be present at the meeting when clause-by-clause consideration of Bill S-11 takes place?
Senator Dallaire: No. I move that they come previous to clause-by-clause consideration and give us their perspective on the amendments. That can be a 45-minute session. After that, it is in our hands.
The Chair: You are saying that AFN be invited to be present at a meeting prior to clause-by-clause consideration of the bill; is that correct?
Senator Dallaire: Yes.
The Chair: I have a motion on the floor. Unfortunately, this is the second vote in five years. In the three years you were there — which makes eight years — we never had a vote, did we?
Senator Dyck: We had a vote last week.
The Chair: Yes, that is the only other one.
All those in favour of the motion? All those opposed, would you raise your hands again, please? Five. All those in favour please raise your hands again? Six. It is carried.
Do I have a vote? A tie would not make any difference.
Senator Dallaire: Well done, Mr. Chair.
The Chair: I am not sure it is well done, but it is done.
We will make arrangements as a committee to meet the wishes of the committee. Is there any further business?
Senator Brazeau: Mr. Chair, the government sharing the amendments by noon tomorrow is an act of good faith so that the opposition can have a chance to see them. I would ask the opposition members if they will also commit to sharing with us by noon some amendments that they might be bringing forward.
Senator Dallaire: Yes.
Hon. Senators: Yes.
The Chair: If there are no further questions, we are adjourned until tomorrow night.
(The committee is adjourned.)