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Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 17 - Evidence - May 8, 2012

OTTAWA, Tuesday, May 8, 2012

The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-8, 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.


The Chair: I call the meeting to order.

Good morning. 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 either on the web or on CPAC.

I am Gerry St. Germain from British Columbia, and I have the honour and privilege of chairing this wonderful committee.

The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally. Today we will be continuing our hearings on Bill S-8, An Act respecting the safety of drinking water on First Nation lands.

Although water and waste water operations and systems are generally the responsibility of provincial and territorial governments, responsibility for drinking water on reserves is shared between the federal government and First Nations. Federally, three departments are primarily responsible for delivering safe drinking water on reserve: Aboriginal Affairs and Northern Development Canada, Health Canada and Environment Canada. First Nation communities, through their chief and council, are responsible for the design, operation and maintenance of their water systems, for which they assume 20 per cent of the costs.

This morning we will hear from witnesses from four organizations: the Council of Yukon First Nations, the Atlantic Policy Congress of First Nations Chiefs Secretariat, the Federation of Saskatchewan Indian Nations, and the Assembly of First Nations of Quebec and Labrador.


Before hearing from our witnesses, I would like to introduce the committee members who are with us today.


Present are Senator Lovelace Nicholas from New Brunswick; Senator Dyck from Saskatchewan, the vice-chair of this committee; Senator Munson from Ontario; Senator Harb from Ontario; Senator Ataullahjan from Ontario; Senator Brazeau from Quebec; Senator Raine from British Columbia; Senator Demers from Quebec; and Senator Don Meredith from the province of Ontario.

Senators, help me in welcoming our witnesses: from the Council of Yukon First Nations, Regional Chief Eric Morris; from the Atlantic Policy Congress of First Nations Chiefs Secretariat, Chief Candice Paul, Co-Chair. and John Paul, Executive Director; Roger Redman, representing the Federation of Saskatchewan Indian Nations; and from the Assembly of First Nations of Quebec and Labrador, Guy Latouche, Consultant, and Madeleine Paul, Chief, Eagle Village First Nation.

We look forward to your presentations, which will be followed by questions from senators.

Eric Morris, Regional Chief, Council of Yukon First Nations: Good morning, senators. Thank you for inviting the Council of Yukon First Nations to address you on Bill S-8, the safe drinking water for First Nations bill.

I want to give you a bit of background on the Yukon First Nations. Eleven of the fourteen Yukon First Nations have entered into land claim and self-government agreements with the Government of Canada and the Yukon government. The White River First Nation, the Liard First Nation and the Ross River Dene Council remain bands under the Indian Act and the federal and territorial governments have not engaged with them in any land claim negotiation process over the past decade.

The Yukon First Nations are diverse. We have rural and urban First Nations, some quite remote. One has only fly- in access. Some have more than 1,000 citizens and others have only a few hundred.

We all need fresh water and we want to ensure that we have access to safe and healthy water. The provisions of our land claim agreements, which are protected under section 35 of the Constitution Act, 1982, relate to water and water management. They cover quality, quantity and rate of flow; traditional uses; and law making powers. I can expand on any of those areas later if time allows.

The health of our Yukon First Nation citizens is of the utmost importance to us as leaders in the Yukon. We recognize the importance of safe, clean drinking water and the environmentally responsible storage and treatment of waste water. The importance of water is underscored in our Yukon Umbrella Final Agreement and the 11 individual self-government agreements, with chapter 14 of these agreements dealing with water management.

The objective of the chapter is to maintain the water of the Yukon in a natural condition while providing for its sustainable use into the future. Many Yukon First Nations are members of the Yukon River Inter-Tribal Watershed Council, an organization of about 70 First Nations and tribes along the entire length of the Yukon River, which is approximately 2,500 miles long. It goes from the head waters of the Yukon southern lakes to its mouth in Alaska. The vision of the organization is to be able to drink water directly from the Yukon River, which cannot be done safely right now.

The responsibilities regarding potable and waste water vary among Yukon First Nations. In some cases they are provided for by the municipality or the territorial government. In other cases, the First Nations deliver water from the municipality or from the Yukon government in water trucks and haul sewage to storage and treatment facilities operated by another level of government. At least one Yukon First Nation has water licences from the Yukon Water Board to operate a piped water system and a sewage storage system and treatment facility.

The Yukon government's health and environmental departments provide oversight with regard to drinking water and waste water disposal for the entire Yukon region. Constant training is essential for safe operation of these systems and Yukon College, one of the major educational institutions in the Yukon, has developed and is delivering a water and waste water operator program which offers a range of courses designed to meet the needs of water and waste water operators working within the municipal, territorial, federal or First Nation governments. This program offers 23 courses, some covering background material and system basics, other dealing specifically with individual treatment plants. Small communities face many challenges with continual training, retaining trained staff and maintaining infrastructure; but they realize it is vital to do so.

I will move to our concerns and recommendations with regard to Bill S-8, the Safe Drinking Water for First Nations Act, introduced in the Senate on February 29, 2012. The Council of Yukon First Nations has a number of concerns.

First, does the act apply to Yukon self-governing First Nations? This appears to depend on whether the First Nation is listed in column one on the bill schedule. Clause 14 of the bill applies to Aboriginal bodies that are party to a land claims agreement or self-government agreement with Canada given effect by an act of Parliament and the disposition of whose lands is not subject to the Indian Act or the First Nations Land Management Act.

This is the case for many of our Yukon First Nations. Clause 14 allows an Aboriginal body to request that the Governor-in-Council add the name of that Aboriginal body to or remove it from its schedule of the parties that the act applies to. However, there is discretion as to whether that request is granted. The word used is "may" rather than "shall." It is not clear whether self-governing Yukon First Nations will be asked if they want to be listed as the schedule is developed. There are also questions regarding whether future programs and funding associated with water treatment and protection will be made available only to First Nations listed in the schedule.

The second concern deals with consultation. In its preamble, the bill states that the Government of Canada has committed to working with First Nations to develop proposals for regulations to be made under the proposed act. The Crown has a legal obligation for consultation with First Nations. The commitment to consult on the development of regulations should be contained within the body of the bill. Given the fact that 11 of the 14 Yukon First Nations have ratified self-government agreements, there should have been direct consultation in the development of this bill.

The third concern is the abrogation of treaty rights. The Yukon Final Settlement Agreement states in section

where there is any inconsistency or conflict between any federal, territorial or municipal law in a Settlement Agreement, the Settlement Agreement shall prevail to the extent of the inconsistency or conflict;

Section states:

where there is any inconsistency or conflict between Settlement Legislation and any other Legislation, the Settlement Legislation shall prevail to the extent of the inconsistency or conflict;

Clauses of Bill S-8 abrogate these provisions. Clause 3 states:

For greater certainty, nothing in this Act or the regulations is to be construed so as to abrogate or derogate from any existing Aboriginal or treaty rights of the Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982, except to the extent necessary to ensure the safety of drinking water on First Nation lands.

Clause 7 states:

Regulations made under this Act prevail over any laws or by-laws made by a First Nation to the extent of any conflict or inconsistency between them, unless those regulations provide otherwise.

Clause 14(2) states:

If an Aboriginal body is named in column 1 of the schedule, this Act and the regulations prevail over the land claims agreement or self-government agreement to which the Aboriginal body is a party, and over any Act of Parliament giving effect to that agreement, to the extent of any conflict or inconsistency between them.

The bill must not abrogate or derogate Aboriginal and treaty rights.

The fourth concern is liability. The bill may require that Aboriginal governments and their officials carry out certain duties imposed on them under the proposed act and regulations. Despite the fact that these duties were imposed by the federal government, the bill removes any liability from the Crown. For example, under clause 4 of the bill, the Governor-in-Council may make regulations respecting the location, design, construction, modification, maintenance, operation and decommissioning of waste water systems. If questions of liability arose from the carrying out of the work required under these regulations by First Nations government or staff, clause 11(3)(a) states that no person has a right to receive any compensation, damages, indemnity or other relief from Her Majesty in right of Canada.

On funding and cost, the bill may require First Nations to install or upgrade equipment or increase staff and training levels. These obligations have costs associated with them. The bill does not identify where the funding required to meet these requirements will come from. Many First Nations are already struggling to provide existing levels of service to their citizens. Funding must be provided to meet the standards contained in the bill.

I want to take this opportunity to thank you for allowing me this time to outline some of our concerns. While we fully endorse the goals of the bill, we believe that further changes need to be incorporated in the current version. We would be pleased to participate in the process of revising Bill S-8 to address our concerns.

On behalf of Grand Chief Massie, whom I represent this morning, and all the chiefs that she and I represent as part of the Yukon, I thank honourable senators for giving us this opportunity. I believe that we have a unique situation in the Yukon with our land claim agreements in place that essentially outline our relationship with the government in terms of the development of regulations, policies and laws that could possibly impact our settlement lands or traditional territories.

As I mentioned earlier in my presentation, I have some background that I could provide if you want me to expand on those points. Thank you very much for this opportunity. I recognize our leadership that is here this morning and give thanks to our creator for being able to bring us together today. I give thanks for our land and for our water. The Council of Yukon First Nations statement is that we are gathered together today for our children tomorrow. We see ourselves as being a part of the land and a part of the water. With that, I give you great thanks and recognition for all the work that you do on behalf of Canada.

The Chair: Thank you, Chief Morris.

I invite Chief Candice Paul and John Paul of the Atlantic Policy Congress of First Nations Chiefs Secretariat to proceed.

Chief Candice Paul, Co-Chair, Atlantic Policy Congress of First Nations Chiefs Secretariat: Good morning. My name is Chief Candice Paul, and I am the Co-Chair of the Atlantic Policy Congress of First Nations Chiefs Secretariat and Chief of the St. Mary's First Nation. My fellow co-chair, Chief Deborah Robinson, Chief of Acadia First Nation, sends her regrets. I am here today to speak on behalf of the Atlantic chiefs regarding our concerns with Bill S-8. I am also here with our Executive Director, John G. Paul.

Our organization represents 38 Mi'kmaq, Maliseet, Innu and Passamaquoddy First Nations communities in the Atlantic region and the eastern part of the Gaspé Peninsula in Quebec. It shares a mandate as an advocate and to research, analyze and develop alternatives to federal policies affecting its member communities and peoples. Our member chiefs support the concept of Bill S-8 but, like many other First Nations and organizations, have serious concerns with the commitment of adequate financial resources to properly implement Bill S-8 and any proposed regulations.

Many First Nations in Canada often have small and remote systems with respect to the provision of water and waste water facilities. As with other small and remote communities in Canada, there are major issues with both human resources and financial capacity. First Nations communities are further challenged by the lack of a central regulatory body and clear standards to follow. Considerable current liability lies with the First Nations leadership and staff. Unlike other Canadian small and remote systems, First Nations are not regulated by the provinces and the standards for compliance are vague and variable based rules connected to various types of funding agreements from Aboriginal and Northern Affairs.

The state of water and waste water in First Nation communities in Canada has come under scrutiny in the past few years. In 2006, Indian and Northern Affairs Canada, now Aboriginal Affairs and Northern Development Canada, produced the protocols for safe drinking water in First Nations. They were updated in 2010 as a protocol for centralized drinking water systems in First Nations communities. Also in 2006, an independent expert panel for safe drinking water for First Nations provided recommendations to INAC on water treatment and management for First Nations communities. They identified 16 key elements of a proposed regulatory system.

Finally, the Institute on Governance produced the Summary Report of the Impact Analyses of the Proposed Federal Legislative Framework for Drinking Water and Wastewater in First Nations Communities in 2009 in an effort to identify a path forward for the establishment of regulations for First Nations water and waste water.

In 2011, Aboriginal Affairs and Northern Development Canada released an Atlantic Regional Roll-Up Report for the national assessment in First Nations water and waste water systems. The goal of the assessment was to define the current deficiencies and the operational needs of water and waste water systems and to identify the long-term water and waste water needs of each community and recommend sustainable, long-term infrastructure development strategies.

During this time our organization, with assistance and support from the Dalhousie University researchers, led by Dr. Graham Gagnon at the Centre for Water Resources Studies, have conducted several research projects for Atlantic Policy Congress of First Nations Chiefs Secretariat in relation to water and waste water systems in Atlantic Canadian First Nations communities.

In 2009, Dalhousie experts reviewed the 16 elements for safe water and developed a detailed document and approach for addressing these elements in First Nations communities in Atlantic Canada. In 2011, Dalhousie also conducted a regulatory review of current Atlantic Canada drinking water and waste water regulation and conducted a gap analysis based on a draft Aboriginal Affairs and Northern Development Canada national assessment report for First Nations communities in Atlantic Canada.

In 2010, Dalhousie University developed a proposal for a drinking water regulatory and operational framework for First Nations communities in Atlantic Canada that would see a pooling of resources and the development of a regional-based water authority that would manage and operate all water and waste water infrastructure in First Nations communities in Atlantic Canada.

In 2012, the federal government again introduced Bill S-8, an act respecting the safety of drinking water on First Nations lands. The act states that a regulatory regime is required to ensure residents of First Nations lands have access to safe drinking water and that the Government of Canada is committed to improving the health and safety of residents in First Nations lands.

The Government of Canada further commits to working directly with First Nations to develop proposals for regulations to be made under the act. Within this context, APCFNC contracted Dalhousie University Centre Water Resources Studies to develop a sample regulatory benchmark for water and waste water in the Atlantic Canadian First Nations communities.

In anticipation of upcoming legislation and possible regulatory changes, the Atlantic Policy Congress of First Nations Chiefs Secretariat contacted Dr. Graham Gagnon of Dalhousie University to conduct a regulatory review and gap analysis for First Nations water and waste water. The objectives were to identify potential benchmarks based on provincial regimes for various regulatory components such as operator certification, source water protection, waste water that would ensure public and environmental health, to review the current state of systems in Atlantic Canada and to help clearly identify the gap between existing conditions and anticipated regulatory benchmarks.

Dr. Gagnon has also reviewed the draft national engineering assessments and based his analysis on what would be acceptable by provincial regulations and standards. Upon close examination and through case studies of systems within the three risk levels, it became clear that systems designated as medium risk should also be considered high risk as they often had clear issues that pose a serious human or environmental health risk.

The majority of the low-risk systems were First Nations under municipal transfer agreements, which mean treatment and often distribution, and is provided and managed by a neighbouring municipality according to provincial regulations. First Nations of Atlantic Canada managed only two of the low-risk systems. Out of the 23 communal systems, 21 are high risk, from Dr. Gagnon's conclusion of this study.

Further review of the study revealed that approximately 50 per cent of the systems have an operator with adequate certification. Only 11 per cent of First Nations systems have a source water protection plan, and 15 per cent have access to a hydrogeological assessment. It is therefore not surprising that 58 per cent of the systems do not know whether their groundwater is under the direct influence of surface water. Wells that are considered GUDI should be treated as surface water systems and thus require further treatment than groundwater sources.

The vast majority of drinking water systems failed the Guidelines for Canadian Drinking Water Quality, mainly due to low disinfection residual and the presence of coliform or increased turbidity, which indicate the potential for public health impacts and unsafe water.

Monitoring and reporting within both water and waste water systems were far below the guidelines established within the protocol for safe drinking water for First Nations, with less than 50 per cent of systems monitoring for microbial quality and disinfection residual in the distribution system. Without monitoring these parameters, a community cannot ensure safety of their drinking water.

Mr. Paul will continue to detail some of the additional work that the APC has undertaken to determine the viability of any proposed regulation and what is needed to ensure it will not fail.

John Paul, Executive Director, Atlantic Policy Congress of First Nations Chiefs Secretariat: I am here to speak on behalf of the chiefs regarding our concerns with Bill S-8. Based on the review and analysis of the draft national engineering assessments done by INAC, it has become apparent there is a large gap between the current state of existing systems and what would be required to meet any sort of legislation and regulation or even achieve compliance. The very large capital cost required to bring both water and waste water systems into compliance with any proposed legislation regulation will be great, but it will be overshadowed by the difficulty and clear costs of proper operations and maintenance. It is the management and decision making for these systems that often causes the highest risk.

The provision of safe drinking water and the effective treatment of waste water are critical in terms of ensuring the health and safety of First Nations people and lands. Legislation for drinking water and waste water has been developed for provinces and territories but it has not yet been developed for First Nation communities.

Although the establishment and implementation of both legislation and regulations for First Nations community needs must be addressed, the challenges will still remain the same regardless of the approach. Financial and key human resource capacities are limited. Also, liability and responsibility for the system by First Nations are of great concern.

If approached provincially, the legislation or regulations would lead to different levels of service and health and safety risks for communities based on their geography and provincial residence. To address this inequality, it is recommended that the implementation of new regulations be conducted through a regional or First Nations entity, rather than on a community by community basis. This possible entity could then set standards that would meet and in some cases exceed provincial standards for each community, just like the large utilities for water in Nova Scotia within the Cape Breton Regional Municipality or the Halifax Regional Municipality.

Based on the extensive review of Atlantic First Nations water and waste water systems, it is clear the gap between current practice and future legislation and regulation is very large. Issues exist in all aspects of design, operation and maintenance of the systems therefore it is not a one-size-fits-all approach that can be taken. The capital cost of compliance with proposed legislation and regulations can be determined based on required upgrades, but without the proper management structure, training and support the systems will continue to be vulnerable regardless of the capital expenditures. The majority of challenges and uncertainty rely on the management component of plant operations, which is currently non-existent in the communities studied.

Again, the comparability between the national engineering settlements and what would be acceptable within provincial regulations and standards is clear. Municipalities within these provinces would not tolerate such outstanding issues or concerns with both water and waste water systems.

The current conditions in First Nations communities have been an ongoing issue for the past decades and we are no further ahead. If these issues and concerns with First Nations water and waste water systems are not addressed we could see another First Nations Walkerton waiting to happen, while the federal government waits to develop legislation and regulations. The liability to manage such risk is too great to place on First Nations alone.

For 2012, we have undertaken a series of projects to look forward with respect to managing water and waste water in First Nations communities in Atlantic Canada. Although the current status quo is a possibility for future management, it was concluded by research done for consideration of our leadership that a regional-based entity, a water authority, may be the most preferred option for moving forward.

I want to share a brief overview of some of the report's objectives, possible paths forward for consideration and the final decision of our leadership and all our communities.

The first report we did was the development of an organizational structure of a water authority to look beyond what is going on in a community to identify what kind of structure, entity, body or person would be a water authority and to look at development of the structure and the responsibilities of the board and an entity. Based on the work we have done, a water authority would need to be created by a federal act like the Safe Water Act. The act would clearly establish the roles and responsibilities with regard to water and waste water ownership and operations for the water authority in a transparent manner.

Our chiefs are looking at trying to figure out what is the best way to service all our communities across the region equally.

The second area that we looked at is the whole idea of P3, which is the new discussion in terms of how to deal with infrastructure and where all these things are going.

We did a study that basically looked at a governance model and governance structure options that would support a regional utility model. We developed a detailed risks registry and identified most appropriate risks to transfer from First Nations to the private sector. We have also conducted a market performance sounding exercise for the bundling of a First Nations water and waste water project.

In terms of the path forward, we are looking to develop a business case that would further define the preferred delivery model and subject it to a quantitative assessment against alternatives. Anticipated time frames for a business case could be up to a year. That will be subject for review and approval of our leadership and communities.

The last bit of work we have done with Dalhousie is about regulatory benchmarks. We developed regulatory benchmarks for First Nations water and waste water operations based on the 16 elements identified in the expert panel. Out of that study and out of what I mentioned before, the implementation required for recommended regulatory benchmarks need to be piloted in several communities to help identify the gaps and requirements before full-scale implementation of a regime in all our communities.

The last bit of work we did for our chiefs and our communities was to look at water rate studies in Atlantic Canada to determine the best path forward in terms of a water pricing model. In terms of the possible path forward, a variable rate model should be used by First Nations. Moving ahead, legislation or regulation should be a three-pronged approach involving clarity in language used in the legislation, including limitations or clarity around Aboriginal treaty rights and consultation; the development of a clear management plan and First Nations by First Nations action plan to remediate issues and all the concerns identified in the national assessment report; and the creation of education and awareness about First Nations leaders and the community on what it means related to safe drinking water.

In closing, we believe that while the Government of Canada continues to work on Bill S-8, it also should ensure that First Nations like our organization, the Atlantic Policy Congress of First Nations Chiefs, have also conducted the necessary homework in 2010 and 2011 to help prepare all our communities fully for this water issue. Again, our member chiefs support the concept of Bill S-8, but like many other communities and organizations, we have serious concerns with the commitment of adequate financial resources to properly implement Bill S-8 and any proposed regulations.

We wish to thank you, the committee, for giving us this opportunity to express our concerns and issues related to Bill S-8.

The Chair: Thank you.

Now we will hear from the representative of the FSIN.

Roger Redman, Representative, Federation of Saskatchewan Indian Nations: Good morning, senators. I will try to be as quick as possible, keeping in mind the time frame.

Going to my notes, I wanted to start with some of the description. Before the newcomers, the land, air and water were viewed as gifts from the creator by the First Nations people — gifts that would ensure our continued livelihood. It is from this perspective that the First Nations people believed they had a responsibility to preserve and keep clean these gifts for the benefit of the future generations. We therefore, through creator's laws, became stewards of these gifts of the land, air and water.

When the treaties were entered into in the 19th century, the First Nations agreed to share these gifts with the newcomers. It was never in the understanding of the First Nations at this time that they were ceding or surrendering these gifts to the newcomers. Water rights are extremely important to First Nations people. Not only did we not give up our water rights to treaty but we have inherent rights to manage, conserve and protect our water resources.

I will go way from my notes here because I want to speak on my history and from the heart. I have been involved with a lot of impacts in Saskatchewan. Saskatchewan is made up of 74 First Nations. Four of the First Nations are non-treaty in Saskatchewan. As a chief leader in our community — and I have been around; I live in the Qu'Appelle Valley, Fort Qu'Appelle, where we have a lake system throughout our area — I have witnessed and have been involved in a number of aspects. My belief on Bill S-8 — and I am speaking from the heart — is that this is an attempt by industry to streamline. To me the term "results based" is to help a system and generate revenue for government and for industry. I believe that this industry is leading these recommended changes. That is my view. I have seen it. I have been part of it. Right now, in the system, we have some operations. Potash is big in southern Saskatchewan. We have experts such as Peter Lévesque, who has graduated from university. We have educated people who are giving us supporting testimony and giving us their concerns on environmental impacts on the work that is being done.

I believe that the concept of transferring responsibility to NRTA to handle resources, which Canada is currently looking at, will falter. A lot of federal legislation will be affected. The migratory birds that come through the North and go to the South will be all impacted. There are a lot of international concerns there on legislation that will be impacted. I will talk about the waste management plan. There is no proper waste management plan in Saskatchewan right now. When permits are being given to dump millions of litres of sewage into the system, this is not a waste management plan. This is being done by the provincial government. When you are going to transfer responsibility to the provincial government, you have to make sure that they are adequately prepared to take over that responsibility. As First Nations people, we believe that anything that impacts the animals and the fish will impact us. If they are dying off, that will happen to us, too. We have had numerous things happen.

I want to talk now about some of the requirements. You talk about safe drinking water. Right now I have a current litigation case against a company that is using oil-based sealants in the cistern tanks. There is no legislation right now to rectify that. I go to Health Canada and to different departments. We need to legislate and regulate that to ensure there is proper adequacy on preservation. It is an oil-based sealant that is being brought in from the United States. These things concern me. The person who is putting these into the communities is not concerned; his attitude is, "I don't care; take me to court."

Under the current legislation the perception is that NRT is a transfer of authority to the provinces. I know that because I am currently involved in litigation on other water issues. There are not currently adequate resources. A handful of people to take over that responsibility is not adequate. That is not justice for the general public.

I was given notice only on Friday of this appearance, but I felt that I needed to be here because my area has been impacted by different perspectives on water. The transfer of responsibility and liability is critical.

The federation has opposed this bill due to lack of consultation. We oppose Bill S-8, and we requested adequate representation and discussions with our First Nations.

These kind of things need to be looked at. Industry is currently running our province and our country and we have an obligation to speak up and oppose that.

Permits are being issued and academics are saying that there is not enough water to meet the requirements of those permits. Our elders are concerned. We must preserve and protect our aquifers. Will we allow industry to access those aquifers? Will we be like the United States, where they are piping water in from other areas because they have exhausted that resource? These kinds of things need to be assessed.

Under existing provincial legislation, environmental and heritage assessments are being waived for existing projects. There is no due diligence there. We have to fix that and ensure that proper due diligence is conducted, and if adequate resources are not provided, that will not happen.

It is the responsibility of all mankind to preserve and protect. We are exhausting our water source with the potash industry to provide fertilizer for countries that are overpopulated. It is ironic to use up your water resource, which we need to survive, to provide food for other countries.

We have to keep in mind that we live in this country and have treaty people with inherent rights as Canadians, and that at the end of the day, when the resources are exhausted, we will still have to live here. We will have to deal with the contamination, the contamination caused by the oil sands and the contamination that will be caused by potash mining. One tonne of potash creates two tonnes of by-product, which will contaminate much land and existing water sources.

Currently they are going so far as to allow industry to self-assess for environmental protection. That tells me who is driving the ship.

I wanted to speak from the heart because I believe in that. Our elders support this concept. As First Nations people we want to assist with proper waste and water management plans. Preservation and protection should be our main concern, not the dollar. You cannot eat money to survive.

I want to thank the Senate for allowing me to speak, and for your patience.

The Chair: Thank you, sir.

Madeleine Paul, Chief, Eagle Village First Nation, Kipawa, Assembly of First Nations of Quebec and Labrador: Good morning. I am Madeleine Paul, Chief of Eagle Village First Nation from the Algonquin Nation in Quebec. Our presentation will be given by me and Mr. Guy Latouche.


I would like to thank you for giving us the opportunity to present the position of Quebec's chiefs to the Standing Senate Committee on Aboriginal Peoples with regard to its study on Bill S-8.

The chiefs recognize that the current legal void goes against the principle of a clean and safe water supply. It also goes against the United Nations' resolution which recognized the right to clean and safe drinking water as a fundamental right within every person's right to life, essential to that right and all other human rights.

The chiefs support the principle of legislation and a regulatory framework on drinking water and waste water to bridge the gap in first nations communities. However, the chiefs remain deeply concerned by the fact that there is no business plan or investment plan in parallel to Bill S-8. That being said, the results of the national evaluation on drinking water systems, waste water systems and related operational practices in first nations communities, which came out in 2001, indicate that $28 million must be invested to bring up to standard Quebec's first nations communities. The chiefs believe that first nations must receive the infrastructure and sufficient capacity to enable them to operate under a regulatory framework governing drinking water and waste water.

Moving forward within a regulatory framework is something which cannot be taken lightly. Canada's Minister of Aboriginal Affairs and Northern Development must provide first nations communities with guarantees to that effect. This means providing them with adequate installations and expertise, as well as an appropriate level of funding so they can properly maintain and operate the installations.

In June 2010, following the introduction of Bill S-11, the chiefs took an official position, by way of a resolution, on the matter of working together on creating a regional model for the development of regulations on drinking water and waste water. This regional position will be maintained under Bill S-8.

Guy Latouche, Consultant, Assembly of First Nations of Quebec and Labrador: Good morning to all of you and thank you. My name is Guy Latouche and I am with Chief Madeleine Paul.

Mr. Chair, the secretariat of the AFNQL, which is the Assembly of the First Nations of Quebec and Labrador, is currently preparing a draft work plan to collaborate with the government on the development of a regulatory framework on safe water and waste water in Quebec first nations communities.

Towards that end, the chiefs believe that two conditions must be met if this collaboration is to work. The first condition is that first nations be fully involved in crafting the regulatory framework which will flow from Bill S-8. This means that there should be a strategy to inform and consult with first nations. The second condition, if this process is to succeed, revolves around the government giving first nations sufficient capacity to clearly move forward under a regulatory regime governing clean water and waste water.

This means three things: pre-emptively upgrading drinking water and waste water treatment plants, providing early training to the people who will operate these plants, that is, those who will be on site every day, and an early review of the budget to make sure that there is enough money to properly operate and maintain the plants.

We need to not only fill the legal void, but we have to make sure that first nations are informed and consulted, and also that they have the appropriate capacity, that they have the means to contribute to reaching the goals that underpin the act and the entire process that arises out of it. These conditions are contained in the work plan which will be adopted by Quebec's chiefs at a gathering in June of this year, and which will then be presented to the federal government.

In conclusion, we reiterate that Quebec's chiefs are willing to work with the government to develop a regulatory framework pursuant to Bill S-8 on drinking water and waste water, and that it will seize this opportunity to find solutions to the challenges facing first nations regarding drinking water and waste water treatment.

Thank you for your time. We would be pleased to answer any questions you may have.

The Chair: Thank you for your presentations. There are senators who would like to ask you some questions.


Senator Meredith: Thank you so much for your presentations this morning. We are always enlightened when presenters come before us who are passionate about their cause. I am a little concerned, Mr. Paul, Ms. Paul and Mr. Morris, with respect to the process of engagement. The government held 13 one-day sessions in 2009, October 2010 and October 2011. They also had consultations with respect to proposed changes to the bill. In your presentations, you indicated that you were not consulted on this.

Can you explain what transpired? How is it that you were not aware of this process to ensure that your organizations or chiefs were given an opportunity to put forth their recommendations or be part of this important process for drinking water on First Nations. Can you elaborate?

Mr. Morris: I can speak only from the perspective of understanding the significance of the land claim agreements in the Yukon. One of the things about the agreements is looking at how they are being implemented. Under other law- making authority agreed to between governments is the need to serve notice when they are going to propose new legislation or regulations. That definitely needs to be followed in terms of its implementation. I think that is one of the reasons.

I understand from an AFN perspective that there was a concern about safe drinking water and being in a position to do something to correct that situation was the objective. As well, being in a position as a government to go ahead and move on that was done. Outside all of that is being able to look at the perspective of understanding that we deal with these systems every day in our communities across the country. In the Yukon we have a good collaboration between municipalities and the Yukon government. We are able to work closely with them to ensure that our communities have safe drinking water and that our waste water management systems are being maintained.

However, it is not the same across the country, as you have heard, and is substantially different in other areas. The importance of being able to sit down and talk with First Nations at the outset was a priority, but it was not followed.

Senator Meredith: Let me clarify. You are saying that your organization was not part of this process from the get- go.

Mr. Morris: Not from what I understand, yes.

Senator Meredith: The government did not advise you in any way that we are doing this process or bringing forth this bill and that we need your input.

Mr. Morris: The process was started without our involvement from the very beginning, yes.

Senator Meredith: There was no opportunity for you to come into the process once it was started?

Mr. Morris: Over the course of time, there were opportunities created.

Senator Meredith: They were not taken advantage of.

Mr. Morris: When you start something, you have to be involved from the beginning so that you have an idea of the intention with regard to developing the regulations. If we are not in a position to have a sense of why these things are coming forward, then we are not sure. We need to be on the same page. That is the objective of it all. If you come to us with a plan in hand that is being developed already, prior to our involvement, then it is not going to be acceptable. That is our objective. Overall, the Assembly of First Nations has been all about being able to look at how we establish and build partnerships. Building partnerships is about having a dialogue based on how you implement legislation, how you develop legislation and how you develop regulations — the whole gamut going forward from what you are speaking about.

It is all about being involved. When we are not involved, that is when trouble happens; and we do not like it at all. It is not something we want to see. We are about cooperation, being able to work together and looking at doing what is in the best interests of not only our people but also other people that we coexist with. Ultimately, that is a long response to a short question.

Mr. Paul: One thing that we have done is be a part of the discussion and dialogue with the government since 2006. The issues around consultation are the degree, complexity and coverage of the issue. We have tried to focus with our chiefs on what is required in terms of our due diligence to ensure that whatever gets done, legislation or regulatory regime, it is in the best interests of our community. Our research and work are evidence-based to look at logical choices based on the evidence that is in front of us. We give our chiefs and communities the evidence and the support to make those choices based on what is happening both in the provincial regime, the existing protocol regime and whatever regime that may exist in the future to ensure that whatever happens in the future works for the benefit of all our communities, fundamentally.

Senator Meredith: With respect to resources, Health Canada officials have appeared before us and indicated that there will be ongoing funding to ensure that infrastructure is in place. That is of concern to you, Ms. Paul, in that you feel there will not be sufficient infrastructure dollars to ensure that the water treatment and quality are kept up. Clause 5(1)(f) addresses penalties with respect to non-compliance. Outside of penalties and imprisonment, what would you recommend to ensure compliance once this proposed legislation goes forward?

Mr. Paul: You need to understand the role that Health Canada currently plays in the equation. It is more of a water monitoring role. They are after-the-fact people, I call them, in terms of the process, basically. They are not involved directly in the planning, design, financing and delivery of infrastructure in communities. They are involved after the fact in monitoring and testing. They can continue testing but in terms of compliance, creating the management and expertise regime in advance will predicate against the compliance regime. One of the biggest discussions that we have had about compliance and penalties that come with this is the Fisheries Act. There is a $1-million per day fine that currently exists under the Fisheries Act related to the dead fish rule in the Fisheries Act. No community, including any of our communities or any community in the country, could withstand that type of fine. I believe the goal should be to mitigate and develop the right capacity of management and governance so we do not get to that stage. You deal with these issues in advance as much as you can and you work with a financial plan that is based on logical evidence, logical planning and actual standards that you know what will be in place 5, 10, 20, 30, 50 years into the future.

Senator Ataullahjan: Senator Meredith asked part of my question. I was going to ask whether you felt there was sufficient consultation with your communities and, if any of you spoke to anyone, what forums you took part in and if there were any challenges remaining.

The next thing I can ask is whether there is much support for this bill from First Nations and are there any issues that are still unresolved?

Mr. Paul: The issue of consultation, like you said, is a very sensitive issue with communities. People look at it as a fundamental legal issue and really try to ensure 100 per cent coverage of all our people in any type of consultation activity related to a law or regulatory regime that has an effect. There have been discussions that have gone on over the course of years which have engaged chiefs, but not communities so much, in terms of the actual discussion. The legislation is really about creating a regime. You are talking in the absence of a regime.

The only regime that exists today is the protocols that exist in the context of the funding agreements which are signed every year with Aboriginal Affairs. The protocols that exist are dictated in the context of the funding agreements which exist with the government. Therein lies the connection that exists between communities and water and waste water. It is the protocols, which are not law, that have been developed for years and has been the standard that has existed.

A reading of the protocols that were developed tells the tale of exactly how complicated the currently existing protocols are that exist within the funding regime. Making things clearer for everyone to understand will go a long way in terms of ensuring safe water for our communities.

Senator Patterson: My first question is directed to the Atlantic Policy Congress of First Nations Chiefs Secretariat. I believe it has probably been a leader in the country in supporting the need for a regulatory regime. I was impressed with the work it has done with Dalhousie and Dr. Gagnon.

You have advocated strongly that new regulations be developed through a regional entity. You know that the preamble of Bill S-8 calls for the department to work with First Nations to develop regulations.

Do I understand correctly that you have already started discussions with the department? Can you say whether Bill S-8 is an improvement over Bill S-11, over which you have expressed concerns?

Mr. Paul: We, like other groups in the country, have had off-the-record discussions with the department over the other bill and with the new bill that currently exists. There are a number of changes that have occurred with this legislation.

The big issue is how we work in a collaborative manner to come up with a regime that works for both. The issue about the financing of the regime is a big issue. Based on the evidence we have looked at in terms of the national assessment and looking at what is going on in communities, the gap is quite significant. We are worried that if you set up a regime and everybody is below it, just to bring them up to the regime will require a significant investment. That is why we are looking at all possible options for consideration of our leadership and the community so they, at the end of the day, can make the right logical decision for our communities.

Senator Patterson: Since this bill was introduced in the Senate, we do not have the power to introduce a money bill. I am sure you understand that.

I would like to turn to Yukon and ask Regional Chief Eric Morris a couple of questions.

First, you talked about the addition of a body like Yukon First Nation to the schedule of the bill. I believe the bill allows for application to bands whose lands are not subject to the Indian Act or the First Nations Land Management Act, such as the non-self-governing bands in the Yukon. Do you want to be brought under the bill?

My second question is a sensitive one. You talked about the abrogation of Aboriginal and treaty rights and Bill S-8 threatening those rights. As I understand it, the clause in the bill only allows for the abrogation of treaty rights or Aboriginal rights where the safety of water for your people is involved or required. Would you not want to put the safety of your people's health and the safety of the water quality as a first priority?

Mr. Morris: One of the things unique to the Yukon is that we have a good working relationship among the municipality, the Yukon government and ourselves. We are able to maintain our systems where we would consider them to be safe.

One thing that is important in terms of looking at what is currently being proposed is that in the Yukon we have, as I mentioned, 11 land claim agreements which took approximately 35 years to negotiate. Part of the negotiations that took place spoke to water and how water was to be discussed and looked after and how it was to be utilized. I actually spoke to how the quantity, quality and rate of flow was not to be impacted when it comes to looking at outside sources and it also looked at the reverse of our being able to maintain that as well.

Apart from that, in looking at how beginning a dialogue around discussions of a safe drinking water act in the Yukon, we have to talk about that and how it will all look. I do not think we totally disagree on how we can move forward. I believe a way forward is looking at what is contained within the agreements and the implementation of those agreements sets out a path forward on how to begin to have dialogue about developing regulations and acts that affect us and impact us when it comes to our settlement lands in the Yukon.

As I mentioned, we have three First Nations that are still under the Indian Act. We have that same working relationship with them in regard to looking at some of the work we are doing in the Yukon. I believe it is very significant from that perspective.

When it comes to looking at impacts, it also speaks to how we are to be compensated if we are affected. As mentioned by my colleagues here, a development is being proposed where it is anticipated there will not be enough water to move forward with it. I then look at what is contained in the Yukon that speaks to this in terms of how the rate of flow is considered when looking at those aspects. Within that 30 or 35 years of negotiations, it cost millions and millions of dollars to negotiate those agreements, which the First Nations had to pay back to the Government of Canada. We have had a huge investment in that and that is something that is significant to us in the territory.

Senator Lovelace Nicholas: Welcome. My question also deals with consultation but I will skip to another question. I have noticed that there have been Senate bills introduced about Aboriginal legislation and there is never any money. I thought I would say that first.

It was mentioned that there were three governments involved in the sector of delivering programs for water and waste water management. Do you feel that these sectors deliver these programs on the butt or do you have to wait for your allotment for money? Do you have problems getting the programs delivered into the communities?

Mr. Paul: It really is about the mechanics of the roles of the different departments. I think that Environment Canada has a very specific role that is involved in the communities but not to the extent that probably we would like in terms of the level of involvement. They are more after the fact, when something occurs, as is Health Canada.

The one that is most heavily involved in terms of what goes on with communities is Aboriginal affairs, basically, because it has a fundamental funding relationship with the community and it is, by hook or by whatever means, involved in what goes on with water, waste water and infrastructure in the communities. It has that direct relationship with the leadership and subsequently with the people in the community. I do not think people think about calling Health Canada or Environment Canada or even Aboriginal affairs about that. In the community they would probably call the First Nation leadership if there is a problem with the water. That is probably where they would call first, or the director of water operation for the community would be the first point of contact in terms of what is going on in the community. I think that they play different roles, and I think the most critical role that does exist is the one that creates the regime about what you build, how you manage it, how you deliver it and how you carry out compliance in terms of the water and waste water infrastructure in communities. It has been primarily INAC or Aboriginal affairs that has been involved in that activity with communities to the greatest extent that I would see in terms of what is going on.

For the last couple of years, Environment Canada has been working with municipalities and provinces on the waste water regulatory regime. Discussions have gone on over the last couple of years with Environment Canada where the voice of Aboriginal people in what was going on in the Canadian council of municipalities, or whatever, regarding the development of the waste water regimes with all the municipalities in the country was insignificant. The First Nations' voice was very insignificant in that discussion because they were too busy worrying about cities like Toronto or Calgary, or the big municipalities, or the big entities, and not necessarily worried about a community of 50 people in northern Saskatchewan or northern Alberta. The focus of the discussions from Environment Canada focused on working with provinces and working with the municipalities that had the capacity and expertise between themselves that advocated their interest in terms of what regime would be created for them. That regime still leaves it open for some municipalities. I figure that maybe in 50 years it will meet the rules that have been developed under that regime.

Senator Lovelace Nicholas: What happens if the money runs out, the resources? That has to do with water and waste water management. Do they stop checking on the water or what?

Mr. Paul: Under the current regime that exists, under the INAC regime, basically the government takes over, which is Aboriginal affairs basically. If the money ran out or something drastic happened in a community, Indian affairs staff or Aboriginal affairs staff would take over, basically. That is kind of what would happen right now.

Senator Dyck: Thank you for your presentations this morning. I think there is a common theme amongst all the presenters this morning about serious concerns with regard to funding, consultation, abrogation of rights and downloading of liability.

My question is probably mostly to the Atlantic Policy Congress of First Nations Chiefs Secretariat because you have done a lot of your own homework and have worked with professors and researchers from Dalhousie University. What would your recommendation be with regard to the bill? You were saying that we should have legislation for the creation of a regional water authority. Should we be proceeding with a bill that is looking at regulations or should we be proceeding in another fashion? If we had a bill to create a water authority, would that not allow for regulations to be developed and for adequate consultation within regions in order to develop the benchmarks and the regulations? Is Bill S-8 the right approach or should we backtrack and start again?

Mr. Paul: At the end of the day, it is really up to the leadership in our area and in other areas to decide and to advocate for that. As I said, once we have had extensive discussions with our own leadership and communities, I think we will have a clearer opinion in terms of what we will end up with. At the end of the day, I know that our interests and the interests of our leadership, and other leaderships across the country, are to provide safe water to our citizens. That is the fundamental goal we all share in terms of what we are trying to do. To have the tools to get there — like you said and as we said earlier — whether it is legislation or regulation, you need the management, infrastructure and processes built in so that they mitigate these great risks that occur.

When I talk about the model in the Atlantic, like the Halifax regional municipality and those types of models, they are not flawless. I always go back to the example in Halifax, when they built that waste water treatment plant and it was a total kibosh and it cost them almost three times as much to fix the problem. You need to build in all of these things to deal with risk, create structure, create process, build capacity and build education as part of the process to ensure that everyone understands and takes on responsibility for safe water for our people in the communities, by whatever means it is delivered. The current system, through these protocols, does not have great clarity, so we believe that another regime is required to create clarity.

As I said, we have looked at the different types of regimes across Atlantic Canada in an attempt to choose the best of what exists that will work for our communities. We need to figure out how to make it work for our communities, because at the end of the day we are trying to ensure safety for our citizens and communities and create effective management and governance structures that are owned by our communities and will be sustainable for the next 25 to 30 years. We do not want to be trying to come up with a logical solution to this very important issue for the next 20 years.

Mr. Morris: It is more than only about looking at what comes out of the tap. It is about source protection. From the Yukon perspective, the land claim agreements speak a lot about how we will protect our water. We have various systems in place. We have the Yukon Water Board and a Yukon environmental assessment program. We have various interlinked processes. The land claims agreements provide an overlay of infrastructure to ensure that we have safe drinking water and that our water will always be protected. It goes beyond just what comes from the tap; it goes to overall source protection. Our agreements are made in the spirit of collaboration, the spirit of working together to ensure that we maintain the land as it is as opposed to creating disruptions to it.

Senator Dyck: What would you recommend that the committee do with regard to Bill S-8? Should we recommend that it go forward as is; should it be amended; should it be withdrawn? Could you each say briefly whether you think we should support Bill S-8?

Mr. Morris: We support it ultimately, but it is important that we have more dialogue about it. As the previous speaker said, it is interesting that many no-money bills land here. That is almost disrespectful. I believe that all of you here this morning have a tremendous amount of knowledge and experience to offer about what we are doing in this country. We must continue to maintain the prestige that we have, which was recognized here yesterday by the Prime Minister of Israel.

We always utilize our elders respectfully in our communities. We use them as points of reference for ourselves in terms of the work that we are doing. We do not use them in a disrespectful way.

I believe that we need to have dialogue about this. There are many things that we need to talk about in relation to jurisdiction, implementation and capacity. A whole range of issues have been mentioned and we need more dialogue.

Ms. M. Paul: We in Quebec support the bill. We plan to work with the government in implementing it, which is why we developed the plan that we will present to the chiefs at the upcoming assembly in Quebec.

Mr. Paul: As I said earlier, we do need a law, we do need a regulatory regime and we do need the money. I recognize the changes in this bill from the other bill, and I believe that we have to go forward. We have to address the issue of water for our communities.

Mr. Redman: We officially oppose this bill because it was developed unilaterally without First Nations input or analysis. We have requested an exemption from the regulations proposed by Canada until meaningful consultation has occurred. I say this on behalf of the 74 First Nations of Saskatchewan.

Senator Munson: In the movie Jerry Maguire they used the expression, "Show me the money." We have been talking about the money. We say that money bills are not introduced here, but in two budgets there was $330 million, and I have heard that $1 billion will be required to facilitate this sort of thing. That means that there is a gap and also speaks to me about user fees. I do not know how many of these nations can afford expensive user fees. I would like that to be addressed briefly.

Also, Mr. Redman, without being mean, why are you so suspicious of industry?

Mr. Redman: Do you really want my truthful answer to that?

Senator Munson: Yes, I want the truthful answer.

The Chair: To add to that, you mentioned potash. Could you elaborate in regard to potash?

Senator Munson: Can we not all get along?

Mr. Redman: Industry is concerned about one thing, and that is money. There is legislation for self-assessment. The current perception is that we are duplicating environmental and other assessments for federal and provincial project proposals and that we need to streamline. To me, there are gaps there. I have looked at the project proposals that are coming in. Offshore investors are coming to this country and making billions of dollars, and they should at least conduct due diligence on environmental impacts and impacts on preservation and protection when spills happen.

There are spills from oil pipelines all the time. It is the responsibility of all mankind to conduct due diligence. We must ensure that adequate funding is set aside for proper administer, and we must work in collaboration on this.

Meaningful consultation is when First Nations can sit together with industry and government to develop guiding principles on generalities and commonalities. We have specific issues, of course. The purpose of industry is to make money. The concern of First Nations is preservation and protection of the environment.

First Nations look seven generations into the future. We have to think ahead and do our job. I see us as First Nations people. Under our governance system, our peoples are up here and we are their servants. We do not develop laws to push them down. We develop laws to support and enhance our people. That is why sometimes in First Nations governance we say that the Eurocentric government does not work for us. We are not top down; we are from the bottom up.

I see myself as a servant of my people in all aspects. As a public servant, I guess in your terminology, I serve the people to improve their lives and to improve the future. We have to start thinking like that. I do not think it is justifiable to say that industry is in the best interests of our people. Like I said before, they do not have to live here when the damage is done. They rape and pillage this land, and then they are gone. Their money is made and they are gone; but we still have to live in that environment. That is a long-winded answer.

We oppose the position. I believe that the meaningful consultation was not there, and the due diligence is not there. The transfer of responsibility of title to the NRTA was a legal position I got from a lawyer representing Canada. That is where I get my information and my perception on how the responsibility of transfer was tied to the provinces to do away with federal legislation and the extinction of species. That has an impact. Right now, industry is getting the green light and they are saying that you do not have to do those environmental assessments on federal lands. That should not happen.

Senator Munson: I would like to get the answer on user fees and the gap between the funding that is happening now and the funding that it is believed has to take place.

Mr. Paul: The analogy I would use into the future is that you would not buy a new car based on the brochure. We feel that doing due diligence and getting what the real costs are in terms of the management, operation and governance and so on will have to be addressed, including what you are talking about in terms of the real cost. Right now the regime is the so-called 80-20 split; but communities are paying it now. What is the difference in the future? You need a regime that works for the community for the governance to work, the management to work, the delivery to work, and the financing to work.

Financing is an important part but the issue that we keep running up against is wondering how accurate it is. The national assessment, although I would not say we were unhappy with it, is a class D level estimate. I would not build a house, a car, a bridge or anything else based on that level of estimate because the institutions or the structures that you are building or providing for the services are all about the safety of the people in the community. They do not squander public safety in terms of the space shuttle program. It would have dire consequences if they missed something. In the case of our communities, the long-term accuracy of costing operations and governance will help us to determine the best course so that we end up with safe water in 2050, basically.


Mr. Latouche: You know that currently, 20 per cent of the money for maintenance comes from user fees. In Quebec, this system works fairly well.

As for the regulatory framework, we want to be sure that under the new legislation and regulations, there will be enough money to operate the system based on the real operational costs. This bill is about safe water and waste water, clean drinking water, and it also includes incorporation by reference of provincial regulations. I have to say that in Quebec, generally speaking, first nations are already aligned with provincial regulations. You cannot get funding from the Quebec regional office to install a treatment plant for either drinking water or waste water, if you are not in compliance with provincial regulations 95 per cent of the time. That is why Quebec's position on this bill is that it will work on the regulatory framework and consider every aspect of the issue, one by one. We will potentially get there because the objective of the Safe Drinking Water Act is ultimately a good one.


Mr. Morris: I will comment on your question about industry. One thing is how we develop a relationship with industry in terms of development. In the Yukon, we have the Farrow mine. We are in the process of reclamation in that area. It will cost millions of dollars to do that, and it is costing the Government of Canada a lot of money. How do you build a relationship with industry? How do you put a reclamation process in place before you begin any sort of development? How do you put money aside? Our old people always say that you always have to put a little bit aside because you do not know when you are going to need it for something. One thing I look at in terms of resource development is that long after industry is done, we are the ones still living there, as was mentioned. We need to be in a position to look at how we will reclaim that land. The other thing our elders speak about is that when we go anywhere out on our land, we are always expected to leave it as we found it; and then I look at what industry does. If industry could look at working towards those principles, then we would have something to talk about. That is just a comment I wanted to make.

Senator Raine: I thank all of you for being here, especially Chief Redman. You have done a great job on such short notice. I was dismayed to hear your comments about the situation in Saskatchewan and that you are not finding industry to be compliant. Certainly, that should not be happening. My understanding of the changes in our environmental regulations and the so-called streamlining is not to go to a lower standard but to have the standard very clear so that there are no gaps so that some do this and some do that. It should be better, not worse.

In this bill, specifically under clause 4(b), there is protection of sources of drinking water from contamination. I would hope that Saskatchewan, especially, would get involved in writing the regulations to make sure that they are strong enough to serve your purposes. That is not a question I have for you but just a hope that I have. I respect that you are very concerned with the situation.

My question backtracks a bit. I would like to get your various perspectives on how the capacity is being built in terms of the operation of drinking water treatments. You can design a Lincoln continental when you really need a model T Ford because you have a very small community without the capacity to do fancy electronic maintenance. Is there an ability to make sure that the operators live in the community and understand the needs of the community; are caring and intelligent enough to be properly trained; and will not up and move elsewhere because they have the training? How do you see that unfolding? I fully believe that providing the nuts and bolts of the infrastructure is one thing, but operating and maintaining it is probably more critical to having a good system going forward. That is what we all want.

Perhaps each of the regions can briefly comment. Are you worried? Are we on the right track or do you see that change is needed?

Mr. Morris: To respond generally, when we were looking at the implementation of our agreements in our home community, where I served as chief for eight years, my sister Bev said we have to think about the kind of government we want to put in place. Do we want to put a government in place that is a "do for" government or do you want a government where we are the ones responsible for the government. We are not necessarily structured in the same way as this government, where there is a hierarchy with someone at the top.

My other point is in relation to understanding one of your comments. In the Yukon some have the view that when we negotiated our agreements we negotiated a Cadillac but we ended up with a Volkswagen engine. When you begin to think about that and understand the significance of what kind of structures we want to put in place, it is almost like looking at the way we live our lives daily. We base our lives on self-reliance, being able to be self-sufficient and being able to do things for ourselves. Essentially that is what we would hope. Whatever it is we do in terms of developing any kind of regulations, we hope it instills within our citizens that when there is a gap we fill it and we have the capacity to do that. That is a significant part of what we are working towards putting into place. That will sometimes come at a cost and we have to be able to absorb that somehow, but aside from that we need to look at how to create that longevity of service we strive for.

Mr. Latouche: In our region there was huge work done to make sure all the operators were certified and there were replacement operators. We also have a good training program, but there is still a challenge. You ask if we can make sure they remain in the community. As of now, we are dealing with the challenge that those people can be targeted by other bodies and we can lose them. There is still the challenge to find others to take over. Even if there is a plan on that specific issue, it remains the challenge that you can miss those people who are in the field who are doing a very important job.

Mr. Paul: I would say that the key is building capacity. The water operators we have dealt with are very committed to their jobs in spite of very low wages in some cases and sometimes great uncertainty in terms of their employment year over year. In many communities these are dedicated people in the community who will stick it out for the long haul. The way forward is to really develop our capacity in terms of the development of this job as a real career for people, provide quality training, education and ongoing long-term career educational development as things change over time.

In terms of retention, if we look at creating these different oversight and management structures it will pull everyone's standard up in terms of trying to do a fantastic job, whether they are in a community of 100 or 3,000. Creating that pride in a career as a water operator weighs against going to work in the tar sands in Alberta. All the water operators are currently being sucked into the vortex in Fort McMurray. From the Atlantic region, we have enough people who go to Fort McMurray in Alberta already.

We are working on strategies to keep our people back in the eastern part of Canada. The focus should be on core training, development, certification, and extra pools for backup operators. Another component that we are working on is in relation to the communities around us, which are some of the municipalities or some of the other larger entities that exist, to also give career opportunities to Aboriginal people. I sometimes wonder why an Aboriginal person is not working at the Halifax Water Commission, which has hundreds of employees.

The water operator position should be a career where someone will stick it out for not just a year, not just 3 or 5, but 10 or 20 years, and really develop the job. As unrecognized as some of the water operators believe they are, they want a fair wage and they want recognition for the important job that they do in the community.

Mr. Redman: In Saskatchewan, through the process of recognition of meaningful consultation, we could probably work on the concerns, address the issues and highlight areas on which we need to focus, such as more training. Of course, we need adequate funding to provide the resourcing and we need to identify the source of the resourcing, but ultimately we can also talk about the whole issue of the recognition of riparian rights for First Nations. That has to be addressed. It cannot be given up through legislation. The position for First Nations riparian rights for the bands that have not signed treaties with Canada still exists through the declaration of indigenous rights legislation, which is recognized throughout the world.

If you consider the United States and how much control they have with the First Nations in relation to their water sources, there is international recognition of those laws. We need to be more inclusive in relation to the initial consultations instead of having a top-down approach. Through that meaningful consultation, the issues will come out and the recommendations will come forward on how we can better source the lack of funding we have right now. Through meaningful consultation there could be potential for adequate funding. We just need to sit with the First Nations and discuss that. A lot of our First Nations have not been involved in the discussion on this bill. That is one of the other reasons for our strong opposition to the bill.

Senator Brazeau: I must say we have been at this for quite some time and I have to admit that I am a bit surprised and confused this morning. We have heard a lot of talk about lack of consultation, or perhaps it is a perceived lack of consultation. We have also heard many of you say "Show me the money." Where are the resources that are going to be able to afford waste water systems and whatnot?

I do not wish to go back and give a history lesson, but it was in 2006 when this all began under the former minister, Mr. Prentice. We are now in 2012. Six years have gone by and there is still no clean water in most of Canada's First Nations communities. Yet, at the end of this year, close to $2.5 billion will have been spent on this. I am a bit surprised when I hear there was no consultation when the fact remains that for six years there have been ongoing discussions between departments and willing First Nations communities. As a First Nations person, I am a bit taken aback when I hear that there has been no consultation and we did not participate, but the offer was always there on the table and money was always there on the table. I think that is doing a disservice to First Nations citizens because all we want at the end is clean and safe drinking water.

We have also heard commentary about "there is no money attached to this bill." I would like to know, because usually it is through the development of regulations where the negotiation takes place with the department so that, First Nations communities will be able to pan out what their needs will be and attach a dollar sign to that. That is where the negotiation takes place.

Having said that, I do not think it is because bills are being introduced here, but if anyone knows of any piece of legislation with the First Nations people with an attached budget to it I would like to hear it.

The Chair: I am going to recommend Mr. Paul because he has been in negotiations with the government, as Quebec. Maybe you would like to respond to that, sir.

Mr. Paul: I guess there has been a lot of discussion over this past time. I think that part of the work that we have been focused on in the last couple of years is doing our own due diligence to create the expertise and the evidence for our community to make an informed decision on where the future will be and have accurate data in terms of what the governance should be, how operators should operate, as well as the most accurate information about costing that we can develop.

As you said, looking at the regulatory regime is dollars, at the end of the day, in terms of those actual details of what the regime will cost, depending on where they fit. It will have a price tag attached to it. We have undertaken to try to get more clarity on exactly what that will be. At the end of the day, communities are committed to provide safe drinking water for their citizens. Whatever it is, at the end of the day, it will have to be paid. It does not matter who ends up paying in some cases. The community ends up having to provide that basic service, which it has provided to date and I believe will provide for as long as I can think.

The greater accuracy of the process, the regulation and the financial costing will help both First Nations governments and the federal government to really figure out, at the end of the day, what will be the number to fix it and to operate it so that it works for the next 20 or 30 years. I think that has always been our focus, namely, to look at it for 20 or 30 years into the future and what you need to do to make sure that people get safe water.

Senator Brazeau: I totally agree with you but my point is that we will not get to that point in terms of starting to negotiate the dollar figures of what is actually needed until this legislation is passed and the drafting of the regulations start.

Ms. C. Paul: You said you were — and I cannot remember the exact word — discouraged about what you are hearing today on saying show us the money.

Senator Brazeau: Confused.

Ms. C. Paul: Sorry, confused. History has shown that we go to the table and act in good faith. We are where we are today because of that. We have been to every engagement. We are going in good faith but we also have to have good faith from the government and not just say let us do this regime and then find out there is not money. We have to go back to our First Nations citizens as leaders to say that we have failed. This has happened over and over in the history.

You are an Aboriginal person, you said, and this has happened; this is our history. We need to have a change. A true partnership is working together and not being held to say, "You have to accept this and maybe money will come." We cannot keep working like that.

Senator Brazeau: I have to respond to that very quickly. I cannot disagree with you. However, my point is again — and I guess my comments were not necessarily directed at the APC because I know you have participated for quite a number of years — for those who said there was no consultation. In the previous iteration of this bill there were three main recommendations that came from Aboriginal witnesses, three of which have been addressed in this bill. However, we still see some opposition and lack of consultation. I would argue that the fact that amendments have been brought to this piece of legislation demonstrates that there has been consultation because we listened to a lot of the recommendations that came in.

We can talk about money; we can talk about dollar figures all we want. However, until this bill is passed and the commencement of the drafting of regulations takes place, we will not get anywhere. If people still oppose this piece of legislation, for whatever reason — lack of consultation, there is no money attached, there is no guarantee — all I can say, and as you very well know, the minister has committed that there will be ongoing funding for this. I do not think that any government that wants to bring clean and safe drinking water, regardless of political stripe or colour, would initiate a system to fail. All I am suggesting is that we need to get to the drafting of the regulations to get to the point where we all want to be. That, I am sure, you can agree with.

Mr. Latouche: Senator Brazeau, basically what you said is our position. Yes, there was consultation. We do not fully agree about the way that consultation was done; there are some issues about that. There was investment as well. We know that there is a gap, but we feel that all this can be addressed at the next step. We want to be involved in the regulations work that has to be done. We want to be consulted and we think that all those issues can be addressed at this step.

The Chair: I have on the second round Senator Patterson who had a short question. We have to clear this room in three minutes.

Senator Patterson: I must say that I was dismayed by the comments of Chief Redman, and the lack of trust that this bill was produced at the request of First Nations in any consultations with them. I am not aware of any consultations with industry whatsoever, although you may believe that is taking place behind the scenes.

You talked about the problem of oil-based sealants in holding tanks and you said that we need to regulate that. This bill will allow for the development of regulations in consultation with First Nations. That is now in the preamble. It was not there before. Since you have made a clear case for improved standards, regulation and protection of source water is not the best way to move forward to create a statute that will allow you to participate in the development of these regulations?

Mr. Redman: That is a good point. I agree with that. However, that is one point. Look at the existing policies right now in the provincial government. They are still grandfathering clauses where they waive heritage impact assessments and they are waiving environmental impact assessments on expansion projects.

There are no assurances right now that the First Nations will be included in monitoring or recommending any legislative changes. There is no commitment there. I may be a little biased; I kind of lean toward guiding principles because it gives me assurance that there are points with which I am comfortable and we can have dialogue with our First Nations and communities.

Research is currently being done that proves the negative effect of waste on humans. In the valley, permits are being issued to dump millions of litres of waste into the system. That is impacting the biological structure and jeopardizing animals on the protected list. Our community is between two lakes, and the impacts are great.

All First Nations are looking out for their best interests, but we need to have a say in what affects those interests and how that is implemented. There must be recognition of our riparian rights. There must be recognition that the Dakota nation has not signed a treaty and that we helped to create and defend this country.

The Chair: Thank you, Mr. Redman.

I want to thank all of you for your presentations and your answers.

Before you leave, Mr. Redman, I want to ask you if potash is affecting the aquifers.

The committee is adjourned until tomorrow evening.

(The committee adjourned.)

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