Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 20 - Evidence - March 9, 2011
OTTAWA, Wednesday, March 9, 2011
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-11, An Act respecting the safety of drinking water on first nation lands, met this day at 6:45 p.m. to give consideration to the bill.
Senator Gerry St. Germain (Chair) in the chair.
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The Chair: It is 6:45, and we have enough senators for quorum. With that, I call the meeting to order.
Good evening. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples. They will be either watching on CPAC or on the web. I am Gerry St. Germain from British Columbia, and it is my privilege and honour to chair this committee.
The mandate of this committee is to examine legislation and matters relating to Aboriginal peoples in Canada generally. A number of reports have highlighted key challenges in the delivery of safe drinking water in First Nations communities, including aging water systems, certification and training of operators, lack of independent resources to fund system operations and maintenance properly, and a 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.
Tonight we will be hearing from the Assembly of First Nations via video conference from Regina, Saskatchewan.
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Before we hear from our witness, I would like to introduce the committee members who are present tonight.
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On my left is Senator Nick Sibbeston from the Northwest Territories; next to him is Senator Lovelace Nicholas from New Brunswick; next to her is Senator Dyck from Saskatchewan; and next to her is Senator Roméo Dallaire from the province of Quebec.
On my right is Senator Patrick Brazeau from the province of Quebec; next to him is Senator Ataullahjan from Ontario; next to her is Senator Poirier from New Brunswick; and next to her is Senator Raine from British Columbia.
Members of the committee, please help me in welcoming our witnesses. From the Assembly of First Nations, National Chief Shawn (A-in-chut) Atleo, National Chief, who is speaking to us from Regina. We thank you, sir, for taking the trouble to make yourself available to us this evening, although you are busy travelling.
He has with him Mr. Irving Leblanc. I do not know what your official title is, but we have seen an awful lot of you. We were pleased to see that much of you during all these proceedings, because I believe you are attached to the AFN and responsible for safe drinking water, and possibly waste water. Maybe you can explain that, National Chief, when you start your opening remarks.
We understand you have been following the progress of Bill S-11 since the AFN first appeared before this committee. We would be pleased to have your views, particularly with regard to the minister's evidence at yesterday's meeting about his willingness to see the bill amended. After your comments, there will no doubt be questions from the senators. As in previous meetings, I must ask you, National Chief, to keep your remarks as brief as possible. I ask senators to do the same with their questions and to remain tightly focused on the subject, please.
Honourable senators, when you are asking a question, please be cognizant of the fact that your microphone has to be turned on and that you will be on camera so that the National Chief and Mr. Leblanc will be able to see you.
Without further ado, National Chief, I ask you to take over the meeting for this portion.
Shawn (A-in-chut) Atleo, National Chief, Assembly of First Nations: I want to introduce Mr. Leblanc a little further. He is our acting director of housing and infrastructure at the Assembly of First Nations and brings with him strong credentials to be able to contribute to this important conversation. He is also recognized as one of the first First Nations persons in the country to be qualified as an engineer.
In keeping with your instructions, I will turn right away to our submission this evening. Thank you so much, Mr. Chair, and to all the senators on the committee.
First, let me express my sincere appreciation to you for calling me back on behalf of all First Nations in Canada. This affirms for me and for all First Nations that you, as a committee, really understand the importance of hearing from First Nations and setting a new path and a new approach on key matters.
Drinking water is obviously a basic need, something that we all understand and value. It is simply not acceptable that First Nations are the only ones who do not enjoy a clear commitment and guarantee of clean drinking water.
I do not need to, nor do I intend to, go over any of the other ground covered by the many witnesses who have already appeared before you. I know you have heard them and listened carefully. You know that every witness on behalf of First Nations has expressed serious concerns with the bill. I would like to share with you tonight how we can move forward together and actually advance clean drinking water for First Nations.
When I appeared before you, I referred to the United Nations Declaration on the Rights of Indigenous Peoples. I did this because it compels all of us to work together to find new ways to work in partnership to establish basic standards for indigenous peoples the world over. This is very relevant to our work here.
Let me also be clear about the concerns that persist with this bill, a bill I characterize as far more akin to past failed approaches than to a modern approach grounded in true partnership. I want to focus on how to move this forward.
I again want to recognize the Government of Canada for making drinking water on reserve a priority and for investing over $2 million. This is significant, and it has been critically needed, yet here we find ourselves with persistent, deep problems despite that investment.
The answer to why this is the case is actually quite simple. As the Royal Commission on Aboriginal Peoples pointed out over a decade ago, Indian policy in our country has failed our people and continues to fail our people. We have to be prepared to turn the corner and that requires fundamental change.
I applaud the efforts of the committee to get at that change, and I applaud the willingness of the minister to entertain amendments. We must now work to ensure that we achieve the change that is needed. This is not about minor tinkering. This bill and this process, as you have heard, require significant reorientation.
Let me clearly identify the minimal elements for turning this around. First, this process must respect fully inherent Aboriginal and treaty rights. Second, it must enable First Nations regulatory development, as is our right to carry out that development of regulations. Third, we must find a way to be clear about the implementation and, equally important, the financial plan to support the regulations.
I understand that a guarantee of resourcing requires the federal government to establish the authority through legislation. This is your process, and we understand that. What we are also saying is that the federal government cannot and must not do this unilaterally.
The minister spoke yesterday, and I appreciated his comment that the bill should enable First Nations regulation. This is what First Nations appearing before you are calling for. They are actively looking across the country at the best ways to advance their regulatory development and the capacity needed to achieve clean drinking water. This is progress, and we must find the ways in which legislation supports and enables it. We have to get to a point where this bill respects the rights and enables respectful processes at the regional level to advance regulation, based on the clear and meaningful involvement and authority of First Nations themselves. In this way, First Nations will be in a position to advance innovation and deliver a critical measure of health and safety in their communities.
Clean drinking water is also essential to development within the communities economically and socially. We all know this and we must all focus on this outcome. I look to this committee to continue this important work to ensure that we turn the corner on the old patterns that have excluded and overruled the voices and rights of our peoples. It is time to move forward with respectful processes that recognize First Nations' authority and create the partnership needed to deliver clean drinking water.
There have been suggestions of amendments, some of which have been shared with First Nations and their organizations. I do not know where this is at now, as the bill in that process is before you. While this development is positive, to this point it has not gone far enough. Most important, it has not affirmed a clear and meaningful role for First Nations or guaranteed a respectful path forward.
Moreover, we still do not have the critical information required to know how this will be implemented and what the resourcing requirements will be. We understand that regulations are needed to ensure that the funding is actually delivering in terms of real results on the ground. We also believe that there must be a commitment to resourcing that will reflect the regulations and ensure that these standards can be achieved.
Again, Mr. Chair, I am thankful for the opportunity to be with you again this evening. I welcome your comments and questions. The role of National Chief is one of a facilitator and an advocate. I do not speak on behalf of other nations; rather, I am mandated to take forward their voices and concerns. Tonight, I am pleased to be bringing forward the interests of the families, the children, the elderly and all our people on reserve who look to this government and to this committee to join us in a partnership that will deliver better outcomes, better standards, and a better tomorrow.
The Chair: Thank you very much, National Chief. I would like to make a brief comment. I think the respect that you seek is shown here tonight by virtue of the fact that the committee asked for you to return and give evidence.
You spoke of the United Nations declaration and of a new way to work together. I have been here for 18 years and I have been on this committee a long time dealing with legislation. I have never seen the government as responsive as it is now in terms of making changes to legislation that does not suit the constituency it is trying to serve.
I hope we can move forward on this in a positive manner. I see this as just a first step. Logically, the development of the regulations, the implementation, and the resource factor will be taken into consideration.
With that, I will turn it over to questions from senators.
Senator Raine: Thank you, Chief Atleo, for being here. I wanted you to come back and talk to us once again because I am under the impression that the minister's words yesterday were clear in explaining the depth of commitment this government has in terms of improving the situation with regard to clean drinking water. What we are looking at here is enabling legislation that is necessary if we are going to move the process through to the next step, which is to write the regulations.
Are you willing to work at this step by step and move the process forward? Everyone in the country would like to see clean drinking water for every community. I see step one being the legislation, step two being to make a plan and then follow through with regulations. We would then go from there, the object being clean drinking water. This legislation is step one.
Mr. Atleo: Thank you, senator. When I referenced the United Nations declaration, I did so because it was an important step for the country to endorse the UN Declaration on the Rights of Indigenous Peoples, which indigenous peoples were directly responsible for helping to draft. This was not just indigenous peoples here in Canada, but really around the world.
There are some fundamental aspects of the declaration that are important to point out. They build on a long history of efforts on the part of First Nations, going right to the early treaty-making days through to the establishment of section 35 and now, more recently, in the UN Declaration on the Rights of Indigenous Peoples. These are important principles and standards about the direct involvement in First Nations designing and directing a way forward, and having the right to do so.
One of those is the principle of free, prior and informed consent. That is, to be involved right at the outset in designing a way forward that we know will uphold Aboriginal and treaty rights which are recognized and affirmed in section 35 of the Constitution and now also recognized in the UN declaration. Canada is recognized as a state as being responsible for engaging with and supporting the implementation of treaties.
This means that when it comes to something so fundamental like the health, well-being and safety of First Nations communities, we need to have that notion of free, prior, informed consent, and the highest levels of engagement that that would suggest. This is what First Nations have been saying.
There has been a strong consensus across the country that the approach that has been taken so far in the development of this bill, which is really the experience in bill development in so many other areas, falls so far short of being satisfactory that we end up with this pattern where, notwithstanding investments made in the past, we have yet to achieve basic, clean drinking water standards for is the most vulnerable population of people within the boundaries of Canada.
Senator, with respect, what First Nations have been very consistent about and have full consensus on is that we have a much higher standard to achieve when it comes to the development and then the execution of delivering safe drinking water.
Senator Sibbeston: National Chief, I am very pleased with the minister making some amendments. I think some of them are good, particularly the commitment in the preamble to work with the First Nations. That is a pretty positive thing.
There is a part of the legislation that bothers me. That is where the Governor General, on the recommendation of ministers, can make regulations. That, to me, is like a bill taken from the archives, back in the 1890s or early 1900s. There have not been any bills like that in the last 10 years. It has been all the other way, giving First Nations authority over their lives.
If there were a provision in the bill where the minister had to consult with First Nations, would that satisfy you? Do you feel that is necessary?
Mr. Atleo: In some ways that builds on Senator Raine's comments, and I appreciate the point about "enabling." I think that is one of the things that First Nations are pushing for. We want to have that commitment confirmed in the legislation and to ensure that high standard, for example, for the development of regulations. This is something Mr. Leblanc may want to speak to.
First Nations want to ensure that the experts in the communities are empowered and supported to develop the regulations, and that that happen where it will have the biggest chance for success to actually deliver clean drinking water, and that these elements need to happen concurrently. The resources that are required must match the support and empowerment of regions, and First Nations within regions, for their experts to be able to carry out the development of the regulations.
I think what is being sought by First Nations is that very high level of commitment by the government to engage with First Nations in good faith so that they can be assured that they will be fully involved in the development of regulations.
Irving Leblanc, Acting Director, Housing and Infrastructure, Assembly of First Nations: That is really the heart of First Nations' concerns. It is to see that there is commitment for them to be involved in the development of those regulations. A good part of that is being done very well by these organizations at this point. They would like to be able to sit down and work with the government to ensure that they have a big say in how those regulations are developed from the outset.
Mr. Atleo: To conclude, then, that notion of direct involvement and the commitment to it is important. There is not a shared sense that its articulation in the preamble is strong enough or good enough to ensure there is comfort amongst First Nations.
Senator Lovelace Nicholas: Thank you, and welcome, chief. As you know, this is a Senate bill.
I have heard a lot of witnesses, and many of them do not agree with this. If there is one good thing to say about this bill, what would it be? What would the one bad thing be about it? Just one.
Mr. Atleo: I said it at the beginning. What is really appreciated, and what our people so desperately need, is a shared recognition of the importance of having clean drinking water. I know that does not speak to the details of the bill. The second thing is equally a process piece, which is a willingness on the part of the minister to look at amendments with a view to improvements.
The challenge then is how we build on that positive element and go further, to where we match up with where the UN declaration says we must go, and break the old pattern of unilateral decision making, which has created a deep mistrust between First Nations and governments. That pattern becomes finger pointing and a blame game. Meanwhile, it leaves the children, the elderly and the sick particularly vulnerable.
I appreciate your question, and it is about time that we had this issue before all of us in order to address it. The committee is to be recognized for that.
Senator Dallaire: The minister should be recognized for demonstrating the courage of bringing his bill back for review and amendment. In this town, that is not an insignificant gesture and a great move forward for the Aboriginal people with regard to solving the problem.
National Chief, we speak about interfacing and discussions and priorities and efforts with regard to meeting the needs of the Aboriginal peoples. I am not sure we are talking nation to nation. However, as national chief, with a phone call do you have access to the minister or deputy minister regarding your enormous responsibilities and theirs? In so doing, can you directly influence them with regard to the priority of efforts going on within the ministry? Can you gain access to information on future planning, like the engineering deficiencies with regard to providing clean water?
Can you get an in-depth discussion with the staff when you would like to do so?
Mr. Atleo: In terms of communication, the short answer is that yes, we have opportunities and the ability to reach out and to communicate.
What needs to be understood is the sharp difference in our respective roles. The minister has government and ministerial authority to advance business in the manner such as these bills. In my role of national chief, I have facilitative and advocacy responsibilities for the 633 First Nations.
That places us in an important position to bring forward the voices that we hear consistently as articulated in resolutions that speak to important issues like this.
Before we began, I was speaking to Mr. Leblanc about the qualified water technicians that we have in our communities. I think that if we were to see an approach where First Nations treaty entitlement rights are respected and implemented, and those experts were engaged to develop the regulations, as Mr. Leblanc was saying, we could see ourselves getting the results that would provide clean drinking water. That would return us to the relationship that was expected at the time treaties were made and that has now been affirmed in the United Nations Declaration on the Rights of Indigenous People.
So we do have that level of communication, but there needs to be a strengthening of how business is conducted. We need to break old patterns of unilateral decision making.
Senator Dallaire: The answer is lengthy. I am a soldier, so I have a hard time following you.
The Chair: I am the chairman, so I will be generous.
Senator Dallaire: It is fine to be an advocate. When you meet with the minister and the deputy minister and query them on the priority of efforts, resources and the planning processes that are going on because he must produce a five- year budget, et cetera, do you get hard information so you can provide advice to the minister and deputy minister?
I am not talking about ADMs. I do not care about the DGs, directors, or section heads. I am talking about the Minister and the deputy minister. Do you get that hard information, and are you able to do that?
Mr. Atleo: Two quick points, because I do not want to anger a soldier. There is a problem when you do not have access to the full assessment of what the challenges are. Then it is difficult to know that you are working on the same basis of information.
Second, it is less about my communication with the minister and more about having that shared access of information, beginning with a shared sense of understanding. It is my role to ensure that First Nations are directly involved in shaping solutions for their lives.
I hope that was short and more understandable.
Senator Dyck: I would like to thank the minister for the work that he has done on this bill. We are making history here. I would like to thank all the senators and the chair of the committee, because I think we will boldly go where no minister or senators have gone before.
Mr. Atleo, you said that some amendments were shared with you but not necessarily in a meaningful way. Could you put some meat on the bones and give us some expectations as you see the bill moving forward?
For example, with the specific claims bill, there was co-drafting of that bill between departmental officials and the AFN.
I do not know if you know the details of what went on, but do you envision a similar kind of process happening with Bill S-11?
Mr. Atleo: Yes. With respect to the elements of the Specific Claims Tribunal Act bill, I was co-chair on the committee where I worked with a person who was appointed by the government. We co-chaired a committee that worked on the Specific Claims Tribunal Act. It was an example of a joint effort that resulted in what is now a successful implementation of the Specific Claims Tribunal Act.
I spoke to my colleague about that, and it goes back to engaging. We have experts across the country in all the regions. If we were to recognize, support and empower our experts to be involved in a meaningful manner, there is no question that we could end up with the results that we are all seeking.
Mr. Leblanc: The history of this legislation began much further back, in 2006. In 2008, the minister's office created a legislative directorate. At that time, they informed us that the minister was interested in the MRP approach and specific claims approach.
We were elated that on this matter, there would be a similar approach to following the steps of joint development and consultation beforehand. Unfortunately, it fell off the wagon; it was not followed. However, it started in that manner.
Senator Brazeau: National Chief, I have one short question.
National Chief, you talked essentially about three amendments, or what you would like to see in this bill. You talked about Aboriginal treaty rights, about having the experts that you talk about being properly included in the development of the regulations and about resources. You mentioned that in a March 8 letter to the minister.
David Nahwegahbow said that a provision for financial resources would likely not be found in enabling bills.
Having said that, if the Government of Canada could accommodate the first two recommendations or concerns that you have, which are reflected in the amendments being proposed by the minister, will you then have a mandate to support this legislation as amended, and will you do so publicly?
Mr. Atleo: To be clear, the mandate that drives us forward really would require us to be able to see all amendments, first of all. We would need to look at a companion document that we would develop together. We would also have to ensure that there was clarity of investment. Those elements together, I think, are critical and build on the consensus amongst First Nations across the country.
As Senator Dyck pointed out, The Specific Claims Tribunal Act serves somewhat as a model for how First Nations and the First Nations' Crown partner, the government, can design an approach that matches that notion of free, prior and informed consent. In fact, when we empower communities, I believe the results will be much more effective. I hope that responds to your question.
Senator Brazeau: It responds to the question in part, I suppose. You have outlined three concerns for the committee. In regards to the financial resources, you well know the process. That will come after. Discussions will be held with First Nations during the development of the regulations, if this legislation is passed. The consultation process will be ongoing.
If the first two concerns that you have outlined for this committee are addressed by the amendments being proposed by the Government of Canada, will you support this bill, and will you get a mandate from your chiefs to support it? Will you do so publicly?
Mr. Atleo: I think we seem to be able to see more eye to eye on the respect for inherent, Aboriginal and treaty rights, a growing recognition of the value of engagement with First Nations on the development of regulations.
Where we run into challenges around legislation and legislative development is with cabinet secrecy, cabinet privilege and issues on the financial side. There is a responsibility to find a way to be clear about the implementation and the financial plan that would support the regulations. Without that, I think what First Nations are saying is that it would be difficult to support any way forward. First Nations have expressed clearly that what we have now falls short of what would actually deliver certainty around clean drinking water for the communities.
Senator Brazeau: I thank you, sir.
Senator Banks: Chief Atleo, thank you very much for spending time with us on such short notice on such an important matter.
Mr. Leblanc, I think I have seen you more than I have seen anyone else in the past few weeks. It is nice to see you again.
Mr. Leblanc: Thank you.
Senator Banks: Mr. Atleo, I want to join my colleagues in commending the minister for recognizing that there is a great deal more work to be done on this issue. I, however, am not quite as sanguine as some of my colleagues with respect to the possible outcome. I will tell you what my view of this bill is and ask you simply to comment on it.
Senator Dyck mentioned the specific claims tribunal development as having been a genuinely collaborative process. You and Mr. Leblanc said that it appeared that the process for this legislation would be that way and it fell off the rails. In fact, this is the opposite, in my view, of a collaborative process. As Senator Sibbeston said, this is a reversion to the old, highly paternalistic ways.
My reservation about this bill is that I believe this bill is so wrong that it is not susceptible of being made right by mere amendment. That is because the fundamental point of the bill, and the foundation upon which it is based, is paternalistic. My main reservation is with the term "consultation."
No one, if I recall correctly, on the expert panel said anything about "consultation." They talked about participation and direct, hands-on, proprietary involvement, about partnership, but not consultation. Consultation cannot be defined. As we have already heard in this committee, there are people who say they were not properly consulted, and there were all kinds of other people who said they consulted everyone.
Mr. Churchill observed that if you consult the prisoner tonight as to whether he would like to have his head cut off in the morning, he will likely tell you that, on the whole, he would rather you did not. Then, in the morning, after you cut his head off you say, "But we consulted with him." I think that is what is going on here.
I am opposed to this bill. I will propose amendments to it to make it as "least bad" as we possibly can. The first thing I will try to do, however, as my colleagues here all know, is try to defeat it and start over again. What is your comment on that position?
Mr. Atleo: My goodness. The visual of the prisoner with the head chopped off strikes me as having a grain of truth about the deep vulnerability of our communities exposed to the water situation, and it is completely unsafe.
Under the instruction of the chiefs, I have made the need for "collaboration" — if I can use that term — abundantly clear publicly. The Specific Claims Tribunal Act was a genuine collaboration. There was joint drafting going on.
I think it can be strengthened even further. There may be an historic opportunity when it comes to delivering clean drinking water for First Nations to break from the old patterns of unilateral development based on non-recognition of treaty and Aboriginal title and rights, and turn this around into embracing, recognizing and implementing section 35. Since section 35 was introduced, there has yet to be an approach that would suggest how to implement section 35 of the Canadian Constitution, which recognizes and affirms treaty and Aboriginal title and rights.
There is something fundamental about water. We share much of the opinion that you hold on this bill which does reflect an old pattern. We do have an opportunity to break that pattern now. We have every ability to do that if there is the willingness amongst the political leaders in Ottawa today.
First Nations have been saying the same thing. Of course, it would be based on the three major items that I have raised here, where there has been a strong consensus across the country.
Senator Demers: Good evening, chief. Thank you for being here.
I have attended every meeting with regard to this bill. I built my career on hope and on being positive. At one time, I would leave here and say there just did not seem to be any hope. There were a lot of angry people among the witnesses, done in a professional way. There were also some senators who were angry.
I just heard some praise for the minister who said he would like to have some amendments. However, from your tone tonight, it seems there is some hope in terms of making amendments, communication, and continuing to talk. I am seeing the situation tonight a lot more positively than I saw it two or three weeks ago.
There is work to be done. There is no question that everyone should be able to drink water. That is not even something to debate, in 2011. It seems that there is hope, especially when some of our Liberal senators praised the minister. Do you see it that way, or am I being overly optimistic?
Mr. Atleo: Senator, I would join you in that sentiment. In my comments earlier, I said that what we referred to as "Indian policy" has really been broken. It has not worked. It has followed a distinct pattern over the course of history. It is moments like this when we look to the senators, the MPs, the minister and the Prime Minister for real leadership because of the deep sense of vulnerability.
There are over 110 drinking water advisories and 50 communities that have threatened situations. If this were happening in the downtown of a major city, it would be completely outrageous and there would absolutely be an uproar. These are real conditions that are happening right now. There has been a clear pattern, which has not been the partnership that the original treaties always suggested, which is that we would reason with one another and work things through and work them out.
Too often, these situations degenerate into deep conflict and finger pointing. They do not result in positive results that work for First Nations in delivering clean drinking water and where we get the kinds of results from the investment of resources that we should all expect.
I believe, as we have demonstrated in the Specific Claims Tribunal Act effort, that doing this jointly can be achieved. Certainly there are hurdles and issues in terms of the recognition of process confidentiality, but we can and must overcome them. As an example, take the area of being clear about implementation and a financial plan. If those are not connected with the development of a regulatory approach, then we are not working from the same body of information. It is difficult to hang on to that sense of hope, which I believe is a sense that we share.
The Chair: I have a question before we go to the second round. You have pointed out, National Chief, the urgency of this, and you are right. We can look at Walkerton and the urgency that developed there. If the urgency for clean drinking water were a problem in any other community of any size in Canada, it would be dealt with great haste.
Every giant journey begins with a single step. That is not my saying. I realize that trust on the part of our First Nations is a tough thing when dealing with governments, because of so many broken promises. As Senator Dyck has pointed out so adeptly, four of us here worked on the specific claims legislation. We asked at that time for there to be consultation, collaboration and participation on behalf of First Nations in developing that legislation, and it did happen.
I realize that we cannot ignore implementation or resources. However, since 2003, the government has invested $2.6 billion into improving water conditions on reserves across Canada, and that far surpasses any 2 per cent cap, I believe.
Do you not think that we could take a leap of faith and move forward in terms of the respective inherent rights, as you pointed out, and the regulatory development, if we could get those through, and then follow up with the implementation and resources? I am asking you this based on the experiences that the four of us have had — Senator Sibbeston, Senator Lovelace Nicholas, Senator Dyck and I — while we worked on the specific claims legislation. Can you give us a response to that, please?
Mr. Atleo: I appreciate the question and the manner in which you are raising it. We have focused in on what the real challenge is in terms of overcoming the depth of mistrust that you refer to, which is real. It has been well earned over a long period of time.
A leap of faith that resources will follow is a very difficult leap of faith to be asking First Nations to make. That is why, when we look back to legislation like the Specific Claims Tribunal Act, suggestions include the idea of a companion document, something that helps to make clear that, first, there is a confirmation of a meaningful role; and second, that there is clarity on implementation. This would be a step in the right direction.
Senator Raine: I see this as an ongoing issue. We have been working and investing money in new systems, and that is ongoing. However, to put in place a regulatory framework, which is necessary to have these systems operate efficiently, we need to take the first step, which is the legislation. I do not think it is either/or; I think it is things progressing at the same time.
My question to you is the following: Do you think it is possible to get the legislation passed and then work together collaboratively to develop the regulations to put in place a national clean water regulatory regime? It cannot happen all at once. Even from your side, I do not think it should happen top down, because there are such a variety of situations across the country. There is a huge amount of work to be done, and I just think it is time to get on with it. I would like to know if that is possible at all.
Mr. Atleo: Thank you, senator. The real key here is ensuring that for the development of regulations, there is a clear commitment and a guarantee on the financial side and a shared notion of how implementation will occur. Those are the real critical elements.
Mr. Leblanc: That is the big leap of faith that was referred to, that there is no guarantee in the bill for those resources — we understand that — but also the comment that this is going to take years and years. At the start of our discussions, they told us it would take decades. That is one of the things that First Nations do not want. They do not want to be sitting with these boil water advisories for decades further. They would like to see some action happening in terms of addressing the concerns of those communities in northern Manitoba that are today seeing no hope of support. They are going to church groups like the Mennonite Central Committee to help them out. That is the big leap of faith with respect to this bill.
Senator Dallaire: It is interesting that you refer to problems of water here in the south, but I have seen our international development do better jobs of getting clean water in developing countries than I have seen in some of areas of this country for Aboriginal people. It is not as if we do not know how to do it. Maybe it is how we prioritize things.
We get this bill and we get the regulations, which then apparently permit them to advance in the implementation of a program, the engineering strategy. This gives them the audit trail of the money that would be invested in building, improving and providing maintenance and training for the requirements of clean water on Aboriginal sites.
The argument that has been presented is that without that legislation it is difficult to hold people to standards and to get the regulations that will ultimately get them the money.
My question is to Mr. Leblanc. Consider the delta of funding you think would be required to bring Aboriginal nations to a reasonable standard with the capacity to sustain significant growth of population — because your populations are growing faster than anyone else's in the country. What delta would bring Aboriginal nations to a reasonable level?
It is true they have invested $2.3 billion; they have another $330 million coming down the road. My feeling is that this legislation has been rammed down the department's throat because the Auditor General is on their back for not knowing where all the money is going and why this is still a problem.
What would that delta be, Mr. Leblanc? Would it be $5, $6, $7 billion to bring everyone up to scratch over the next 5 to 10 years? Do you think that will be possible under the fiscal constraints that are coming down the road now with our deficit?
Mr. Leblanc: Thank you for that question. You yourself forwarded a number of $8 billion. We do not know. We have been making statements that we should see and your committee should see the results of that national engineering assessment to determine what that delta will be.
We know that First Nations have been impacted by the 2 per cent cap. We also understand that there have been additional dollars through previous budgets to address that. The fact is First Nations are still in dire straits with all these resources put in there. We still have those 49 communities that the National Chief mentioned and the ongoing boil water advisories that have been on an upward trend for years. It points to the current level of funding not being sufficient. We tend to agree that that number will be huge.
Senator Sibbeston: I am quite positive; I have been impressed with the changes that have occurred. In the last few days, since the minister has appeared, there seems to be new energy or initiative surrounding the bill in terms of the minister's discussions with you.
I note tonight, Mr. Atleo, that you are pretty rational about the whole subject and hopeful, positive about possibilities. Seeing this situation, if we as a Senate committee were to pass a motion encouraging the minister to work with you for the next two weeks to come forth with further amendments, would you be willing to engage almost full- time for the next couple of weeks working with the minister to come up with further amendments that would be satisfactory both to the government and to First Nations?
Mr. Atleo: You are talking about a two-week time frame. I think back to our Specific Claims Tribunal Act effort, which was further down the path of a jointly designed effort. I cannot recall how long it took us, I think it was nine months, to get that work done.
If there is a preparedness to hear the voices of First Nations, which in many ways we are summarizing here, with respect to the three major areas that we have been talking about, and if I build on Senator Dallaire's question around the Auditor General and talking about federal funding and your question about feeling positive, then perhaps there is an opportunity for us to engage in a relatively short period of time. I look to Mr. Leblanc and I reflect on all of the work. You see, the specific claims legislation had 30 years of effort as well. There was a model bill that had been developed in the late 1990s. Our experts would be ready in short order to engage. For two weeks, my short thought is yes.
Mr. Leblanc: I agree with you, National Chief. They would welcome that opportunity, and that was the offer made by the minister several weeks ago, but it would be very challenging to do that in two weeks. We do not have the resources to do the detailed work. In two weeks, it would think would be very challenging to respond to that.
Mr. Atleo: Just to be clear as well, I like it as a tough question because it suggests that there is perhaps a growing willingness to engage actively. I think First Nations would be interested in also vigorously engaging, but Mr. Leblanc is referring to the notion of having fairness in both time frame and the availability of resources so that we can have the right people with the expertise to engage in a timely manner. Is that two weeks? We may need to talk about the actual time frame in order to ensure that the work can be done that is of the quality and satisfaction of everyone.
Senator Banks: I will replough the ground that has been ploughed already by the chair, by Senator Raine and by Senator Sibbeston, Chief Atleo.
I want you to understand that no one could not want to have clean water for any Canadian. I do not believe in breast beating, mea culpa and apologies, we should all look forward. No one sitting in this building and no one who has ever sat in this building is innocent of dealing with this question badly.
What our Liberal governments in the past did or failed to do was shameful. Let that be clear. No one is innocent of that, and what is going on now is shameful as well. My question boils down to that leap-of-faith question.
Chief Atleo, I want to ask you whether you think it is right that you should participate and be a partner in the devising of a bill to deal with this question, which will become an act of Parliament or participate in one way or another in the regulations that will be made under a bill. That is the question. It is the question that Senator Raine asked.
Do you want to participate in the devising of a bill to deal with this question or will you be satisfied if such an undertaking is made to participate in the making of the regulations under this legislation?
Mr. Atleo: The example that we were describing under the Specific Claims Tribunal Act was an example under the leadership of former National Chief Phil Fontaine where the Assembly of First Nations was directly involved in the drafting of a bill. I think that is what is being described here.
The reason for that is anchored in the United Nations declaration, which has now been endorsed in Canada, in section 35, and in the treaties and the treaty relationship, and in the over 40 court decisions that affirm that Aboriginal title rights do exist. We begin to describe how to give effect to that. As the declaration points out, that means that when states like Canada are looking to address issues like water, which will impact people like the indigenous peoples within the borders of Canada, we have the right to be involved in addressing and designing solutions that work for us.
The reasons for the involvement in the regulations is because when we empower and place the responsibility closest to where the issues are, we will all realize much better results. If we do this based on a shared understanding in issues like the assessment, and if there is a shared understanding about building a system that will be more effective, we will naturally end up having a better result from resources expended and, therefore, having a better result when it comes to clean drinking water.
That is the pattern that we have an opportunity to break. We have done so in the Specific Claims Tribunal, although that tribunal is really just getting operational. It was, by itself, fairly historic as it was a jointly established piece of legislation.
Senator Banks: In short, this will work better if the First Nations can buy into the process rather than having to deal with one that has been imposed on them?
Mr. Atleo: Yes, that is really the key. Everything from the residential schools to the Indian Act to so much else has been imposed over the course of history. That is the first pattern we need to break, where we jointly establish an approach that will build that trust. It is important to ensure that my colleague and other professionals are directly engaged to develop regulations that will work and that we match that with the resources.
The Chair: Thank you, senators.
On behalf of senators, and the committee, I would like to thank you, National Chief, and Mr. Leblanc for participating tonight. Your contribution always helps to solve some of the problems that we are facing with First Nations. We want you to continue your good work. Hopefully, we will see you Friday night at the Aboriginal National Achievement Awards in Edmonton.
Good night and watch the cold weather. We will see you in Edmonton.
Honourable senators, we will now go in camera to discuss some administrative things, so I will ask you to remain. We will suspend for a few minutes until we get the cameras out of here. We will then carry on with the meeting in camera.
Senator Sibbeston: In our in camera meeting, will we be able to discuss Bill S-11?
The Chair: Yes; a portion of the discussion will involve that. The meeting is suspended.
(The committee continued in camera.)