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Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 17 - Evidence - May 9, 2012

OTTAWA, Wednesday, May 9, 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 6:45 p.m. to give consideration to the bill.

Senator Gerry St. Germain (Chair) in the chair.


The Chair: Good evening and welcome honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples on CPAC or on the web. I am Senator St. Germain, from British Columbia, and I have the honour of chairing this committee.

The mandate of this committee is to examine proposed legislation and matters relating to the Aboriginal people of Canada generally. Today, we will continue to hear testimony relating to 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 reserve is shared between the federal government and the 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 Nations 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 evening, we will hear from witnesses from the Union of British Columbia Indian Chiefs and the Mohawk Council of Akwesasne.


Before we hear from our witnesses, I would like to introduce the members of the committee here this evening.


On my left is Senator Lillian Dyck, deputy chair of the committee, from the province of Saskatchewan. Next to Senator Dyck is Senator Lovelace Nicholas from the province of New Brunswick. Next to her is Senator Hubley from the province of Prince Edward Island. On my right is Senator Tkachuk from the province of Saskatchewan. Next to him is Senator Percy Mockler from the province of New Brunswick. Next to Senator Mockler is Senator Raine from British Columbia. Next to her is Senator Demers. Last, but definitely not least, from the province of Ontario, we have Senator Don Meredith.

Members of the committee, would you please join me in welcoming our witnesses: Chief Robert Chamberlin, Vice- President of the Union of British Columbia Indian Chiefs; and from the Mohawk Council of Akwesasne, Grand Chief Michael Mitchell, Chief John Adams, and James Ransom, Director.

Witnesses we look forward to your presentations. We would like you to keep them as concise and as precise as possible to allow time for honourable senators to put questions to you in relation to your presentations and to the issue generally before us.

Without further ado, I am sort of partial to the West, as much as I have always liked you, Grand Chief Mitchell. Have you decided between you who should go first? He goes first? Robert Chamberlin, go ahead sir.

Chief Robert Chamberlin, Vice-President, Union of British Columbia Indian Chiefs: I would like to open my participation with a prayer song. It talks of reaching to the other side, to the spirit world, for assistance so that our lives are of greater purpose and so that we see a better future for our children. I think, in all the work that we do in leadership for First Nations and in your role as senators, this is the essence of what we try to do and work towards — to see what is best for the future.

I will magically turn this into a drum.

[The witness sang in his native language.]

I am the elected chief of the Kwicksutaineuk-ah-kwaw-ah-mish First Nation of Gilford Island. I am here in my capacity as Vice-President of the Union of British Columbia Indian Chiefs. I have asked you all to hear the words that I am speaking from my heart on behalf of our people and on behalf of the all the First Nations in British Columbia. The Union of British Columbia Indian Chiefs was created in 1969. We have been at the forefront of a charge for a fair and just settlement of the land question in British Columbia.

Today, we have 104 First Nations as members. I think this is a significant number in British Columbia and a significant number nationally as well. We have previously presented. I have been here before, and I will speak largely on the same topics. I want to advise you that we will speak of the Constitution of Canada. We are also going to speak about the Supreme Court of Canada and its rulings. We will also make reference to the UN Declaration on the Rights of Indigenous People. I outline these at the outset so that we can see the seriousness of what we are basing our discussions on as First Nations. These are not simple policies; they are things that define this country and, within that context, define your role as senators within the democracy that we find in Canada. I implore you to reach inside yourselves to ensure that you step up and fulfil your role in the broadest possible sense and hear what it is that First Nations are bringing to your attention today.

I will also make reference to the expert panel that toured Canada a number of years ago, a well-resourced effort by the federal government to gather information relating to the conditions of water and to gather First Nations input on a way forward. I will talk of the pre-conditions. I will also speak of the Assembly of First Nations' First Nations Water Technical Advisory Group, which I participated in for about three years, on behalf of the BCAFN. I will also speak of the experience of the Kwicksutaineuk-ah-kwaw-ah-mish people of Gilford Island and the challenges we faced in securing safe drinking water. We enjoyed a do-not-consume order for 10 years. That is a shame, in this day and age, within Canada. The Union of British Columbia Indian Chiefs has a resolution that causes me to be in front of you today. Resolution 2010-36 called for abandonment of Bill S-11 in its current form. I know that we are here today to speak of Bill S-8, but, with such minute changes in the bill, the issues are largely the same. It must be severely amended, as the Union has pointed out a number of times, so that it does not infringe on the Aboriginal title and rights of First Nations of British Columbia and of Canada at large. It is so flawed that we feel it needs to be scrapped, and we need to go back to the drawing board. With the majority that Prime Minister Stephen Harper enjoys, it is within his grasp to do what is right, and I implore all of you to assist him in striking down this bill.

We understand that this bill was introduced on February 29, and we had hoped that it would have incorporated the recommendations that came out of Bill S-11. Sadly, they are missing.

I want to deliver a clear message to the Senate committee that we are not headed in the right direction with Bill S-8, and we absolutely need to start over. You must realize that there are zero guarantees that First Nations could meet regulations that would be developed under the bill without adequate guaranteed capacity. This is an item clearly found in the report that the expert panel delivered to Canada. Further, the bill infringes upon constitutionally protected Aboriginal title rights and treaty rights, fails to recognize First Nation authority or jurisdiction and does not provide for accountability to First Nations, the very people the bill is supposed to help. The problems that we find with drinking water in Canada are not due to a lack of legislation but to a lack of adequate resourcing from the federal government to make the necessary changes to deliver safe drinking water. In 2012, safe drinking water for First Nations in Canada should not be an issue.

We are concerned that if this bill does pass, it will set up us for failure. The current funding model of 80/20 does not give us the resources that we need. It is far too well known that many First Nations that are living in poverty and so forth will not be able to adequately come up with the balance of the money. It must be fully resourced. We need the resources to ensure that the infrastructure is up to speed. We need resources to ensure that the capacity needs are met, that we look to invest in our people for a long-term solution and that we look to include First Nations in a meaningful, clear way, guided by the Supreme Court of Canada's rulings about the consultation requirements that the federal government is meant to defend the honour of the Crown with.

The expert panel was very clear in the fact that Canada needed to close the resource gap, and we have not seen anything to that measure. Some monies came out of stimulus package a number of years back that were tagged along for First Nations. I understand some money has been identified in this last budget to assist. However, it is nowhere near what the expert panel has described as what kind of resourcing would be necessary. When it recommended several billion dollars to meet the need, it showed the Canadian government's contribution in excess of $100 million is still woefully inadequate. To off-load the responsibility to First Nations without having proper equipment and capacity is not in the best interests of Canada.

We respect the fact that there are some First Nations in Canada that have been working with the federal government in developing this. We are by no means calling into question their authority or their opinion or offering judgment upon it. I am here to tell you that in British Columbia we reject Bill S-8, just as we rejected Bill S-11. The Union of British Columbia Indian Chiefs as a resolution has submitted a number of letters to the government clearly and categorically explaining the issues we have. When Bill S-8 comes out without having any kind of meaningful change encompassing our recommendations and direction, it flies in the face of the UN Declaration on the Rights of Indigenous People.

The UN declaration is something that Canada purports to the UN that they uphold and support. The actions that the government is taking do not match the words. To me, it underlines the hollow gestures that Canada continues to enjoy by recognizing the UN declaration without bringing it to the ground in a meaningful way in which First Nations can engage and look after our citizens, our children and our generations to come. These are not lofty goals but things that each and every one of us has deep in our hearts for our children and our grandchildren. We as leaders of First Nations must stand up at every opportunity and explain that the government's words, if they are hollow, need to be exposed to Canadians and to the world.

Bill S-8 was written without consultation and a combination of all First Nations in Canada. It does not recognize the existing authority and jurisdiction of First Nations over their lands. It does not guarantee that First Nations will have access to safe drinking water. There is no commitment in the bill to provide certainty of adequate engagement and involvement of First Nations in the development of regulations. Bill S-8 states regulation will supersede existing First Nation laws except where there is a self-government agreement recognized by federal statute. Given that many First Nations do not have such an agreement, Bill S-8 represents and undermining of First Nation self-determination and authority.

Although the bill includes a loose commitment in the preamble of the First Nation input to the development of the regulations, there is still no capacity provided for this development. Further, this commitment is top down and does not actively coordinate authority. Bill S-8 included an extremely weak and unacceptable non-derogation/abrogation clause that still permits infringement on constitutionally protected rights. This is unacceptable. The Constitution of this country is the foundation of the democracy. For us to enact a bill that will clearly be in defiance of that is unacceptable. It should be unacceptable to every Canadian and to everyone in this room as a senator, in my humble opinion.

I want to talk about Gilford Island and our 10 years of a do-not-consume order. Once we were granted access to federal media and your feet were in the fire, then we got some action for our village. Along the way, there was a pilot project where we ran three reverse osmosis plants in concert, which were never designed to work together. There were software collisions and control issues and it drained the one well that we had. It added additional costs of drilling two new wells and the need for broadband Internet. We turned to the government to live up to its word because it said that after one year of testing they would move it to a final phase. We are here three years later and our submission, by the good graces of AANDC, might get funded. We have taken what was supposed to be a pilot test and turned it into an interim solution, which was never intended.

If this is the experience of a small First Nation in British Columbia in an isolated community, then this is most likely what many First Nations in similar locations and isolated places will also face; and to me it is unacceptable. I think of communities like Kashechewan, Gilford Island and Attawapiskat. This clearly show the shortcomings in the Canadian government's approach to meeting the needs of First Nations and living up to its fiduciary obligations as defined by the Supreme Court and by the Constitution of Canada and what is included in the UN Declaration on the Rights of Indigenous People.

It is unacceptable that Canada continues to move forward top down and trying to do what is best for our First Nations people with the absence of our input. The days of colonialism are long gone, but it is still quite alive and well in many of the behaviors of the federal government. We have to recognize this for what it is: a further denial of First Nations as peoples and a perpetuation of the doctrine of discovery. The behaviours of the government in the court show that we still must demonstrate to the court that we are actually people. Canadians and this great country of Canada deserve much better from the federal government. It must live up to the human rights standards that it supports internationally and to bring that home and make sure our backyards are taken care of as we wonder around the word and point fingers at other countries and their human rights infringements.

I want to talk about the source to tap notion from AANDC. Source water protection: I think the federal government would do much better in devoting some resources, which are now being directed to Bill S-8 and Bill S-11, and directing that energy into resources to develop some sort of meaningful arrangement — a mechanism — to engage with the provincial governments across Canada. The federal government purports to look after the source water protection but has no authority in the watersheds or the water tables that we find in British Columbia. That falls under provincial jurisdiction. Right away, we have a government that cannot even live up to the commitment it makes and purports to be seen as some measure of progress for itself.

How is it that the federal government can guarantee any First Nation source water protection when it has no authority in our territories, which the Crown has generously taken from our people?

In conclusion, I would like to reiterate that the UBCIC opposes Bill S-8 in its current form for the reasons given today. Once again, we recommend that the current bill be scrapped and that a new process begin, one that involves appropriate consultations and accommodation with all First Nations, one that addresses the capacity gap, and one that works toward a regulatory regime that reflects Aboriginal title, Aboriginal rights, treaty rights, our jurisdiction and guaranteed access to safe drinking water. The government needs to identify for Canadians so that they can have comfort and some confidence in this government to meet the needs of First Nations. It needs to be adequate resourcing and a long-term commitment for capacity; and it needs to be a regulatory regime that will not handcuff First Nations or pull one leg out from under us so we can stumble along. That is not a solution. It is time we brought the UN declaration to the ground.

In addition to being the elected chief of the Kwicksutaineuk-ah-kwaw-ah-mish people, I am a Canadian citizen. That tells me that each and every one of you senators is my senator. I implore you to do what is right. I implore you to put a stop to this foolishness of Bill S-8 and that you stand and hold the ground that you are charged to do with your responsibilities and capacity and push back on this bill and let the majority government know that it is unacceptable. You are hearing the words from First Nations across Canada that you accept the breadth and width of the responsibilities bequeathed upon you as senators and that you stand tall. I will be standing beside you to cheer you on when you do that, Senator St. Germain; I know it is in your heart.

[The witness spoke in his native language.]

Michael Mitchell, Grand Chief, Mohawk Council of Akwesasne:

[The witness spoke in his native language.]

We want to thank you for allowing us to speak in your house. We bring greetings from our people in Akwesasne, from the eldest to the youngest in our community.

We are here to talk about an issue that concerns our people greatly, for we live in the St. Lawrence Valley. We live along the river called the St. Lawrence. Water is very much part of our lives. We live on the river, we breathe, we pay respect to Mother Earth, to the water, the land, the air that we breathe. Those traditions are still very much with us. It is for those reasons that people have asked us to speak out.

We have brought a paper that we will leave with you at the conclusion of our presentation as a way for you to remember our words. I want to quote a bit of it to let you know what is on our minds.

The Mohawk Council of Akwesasne supports safe drinking water and the need to develop regulations governing drinking water, water quality and waste water disposal on First Nation reserves. However, we are greatly concerned with Bill S-8, the safe drinking water for First Nations act. It does not reflect the discussion that has been had in support of it. We believe that substantial improvements are required so that it can best meet the needs of all First Nations. The single best issue with the proposed legislation is the opportunity that is being missed to help First Nations and Aboriginal people grow and assume greater responsibilities to efficiently and effectively regulate their drinking and waste water systems.

Despite its steady intent, the proposed legislation, as presently worded, does not allow for growth in First Nations, does not allow for a maturing of their ability to manage their own affairs, and does not promote capacity development at the community level. We will always be subject to someone else's control — provinces and/or unnamed third parties.

In the years since the 1950s, when industrialization of the St. Lawrence River Valley occurred, Akwesasne became one of the most polluted reserves in Canada. Industrial pollution has impacted the water we drink and the air we breathe for the past 60 years. We are located in one of 43 areas of concern identified in the Great Lakes Basin. Out of necessity, we have developed the skills of our environmental staff in Akwesasne to effectively respond to these environmental issues. Over time, we have successfully integrated our traditional ecological knowledge with Western science in order to best protect our community's environment. As a result, we have one of the most qualified and experienced environmental staffs on a reserve in Canada.

Akwesasne is one of the largest First Nations in Canada, with a membership population of over 11,000. It is an international community located in Canada and in the United States. An additional 6,000 to 7,000 Mohawks reside on the American side in one community. We have one state, two provinces, two countries. Our unique geographic locate has compelled us to develop our ability to deal with multiple jurisdictions on a daily basis.

We strongly support development and enforcement of community laws. We have a justice department and a court system. We have had a drinking water bylaw in place since 1964 that provides rules for the construction and maintenance of a waterworks system and regulates water supplies. We also have a wildlife conservation law that is needed to serve the areas we live in, which includes water, islands, wildlife and fish. Those are our brothers and sisters and we have an obligation to look after them.

We have assembled all the staff necessary to properly regulate drinking water safety. Our health department is one of the largest in our government. We have a health director, the equivalent of a health minister at a First Nations level. We have trained professionals; an environmental health officer and community nurses to collect water samples. We have a department of technical services that supervises the operation of our two Class III water treatment plants, our one Class I water treatment plant and two Class II plants. We also have one Class II waste water treatment facility and four Class I plants. We have nine provincially certified water and waste water plant operators.

Over time our people have gone to school and become certified in order to protect the health interests of our people, our community. We bring to you our experience. You do not have to entice us to be concerned about health and water in our community, because we have done those things. Sometimes you have to create laws in spite of federal and provincial laws and regulations. Over time, we have gained acceptance in partnerships with the provinces, the federal government and Indian Affairs when they saw the objectives and goals that we have set. We want to bring to you our experience from what we have learned and the capacity-building that our people have developed over time.

Aboriginal rights and treaties are constitutionally protected and they must be upheld. Aboriginal rights arise from our longstanding relationship with our lands, and the waters of the world are an integral part of this relationship. We refer to them as the bloodlines of our Mother Earth. We acknowledge the responsibility to quench the thirst of all life in our thanksgiving address. Our Aboriginal rights give us inherent responsibilities to protect the waters.

Treaties are an important part of our history. The Two-Row Wampum and Silver Covenant Chain are two of our oldest treaties and were used to establish our relationship with the Europeans hundreds of years ago. They are based on principles of peace, good mind and strength by making sure our words and actions match.

In the 17th century, in the St. Lawrence Valley our people made the Oswegatchie Treaty, the Treaty of Kahnawake. Those treaties secured our Aboriginal rights in the St. Lawrence Valley where we live. From the earliest times until today our people have built our nationhood status.

We are presently involved in the last leg of self-government negotiations with Canada, and we have outlined and articulated our position. That process of negotiations has been going on since 1988 and more so in the last five years.

Going forward, our mission is to protect our people, our lands and waters. Aboriginal and treaty rights are inherently protective of the natural world, including the waters. They are constitutionally protected rights of First Nations that are recognized in section 35 of the Constitution Act, 1982. We cannot imagine federal First Nation safe drinking water legislation being enacted that would take away our constitutionally protected Aboriginal or treaty rights and that such an action would somehow be viewed as a positive step.

Instead, proposed federal legislation must contain a non-derogation clause indicating that the legislation should not be interpreted to abrogate or derogate from Aboriginal or treaty rights.

The last part of clause 3 of Bill S-8 infringes on the constitutionally protected rights of First Nations. While some believe this is an improvement over the language in Bill S-11, it is not enough to limit the likelihood that the legislation will interfere with our Aboriginal or treaty rights. The intent to protect Aboriginal and treaty rights must be clearly stated and Akwesasne strongly recommends the deletion of this last part. Section 3 should read:

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.

I will now ask Chief John Adams to talk about the need to incorporate First Nations-driven approaches.

John Adams, Chief, Mohawk Council of Akwesasne: Thank you for letting me speak. Akwesasne currently cannot support Bill S-8 at all. We do feel the need for a water legislation bill, but the actual way it is going is a one-size-fits-all. For Akwesasne specifically, the grand chief has said we have the capability. We have been doing this since 1964, but in dropping Bill S-8 onto Akwesasne, I feel you will only hinder us. Instead of helping us, you are forcing it upon us.

Like my grand chief said, we are the second largest on-reserve First Nation. We are 40 minutes away from Ottawa. We have not been consulted. I have no idea why.

When you talk about the Indian Act, it allows us to make bylaws. We currently have a bylaw. Bill S-8 will supersede our bylaw. We can make our own bylaw, which we did, and if we have anything that goes against the legislation, the legislation will supersede it. How does that let us grow if you are implementing legislation over us?

Like the grand chief said, we are in agreement on principle on the federal lands nation building, sectoral agreement. We are currently in agreement in principle. However, currently, as the legislation reads, that does not matter; you have to be in one. We are going through it right now, so there is no leeway.

In the matrimonial legislation, Bill S-2, there is a clause for a transition period from First Nations communities that are in self-government agreements. Since we have not officially signed off on an agreement but have one in principle, Bill S-8 will fall on top of us and take control. How does that let us grow?

We have started talking to the provincial government about taking on the responsibility of water and waste water. We have favourable responses to that effect. Currently in Bill S-8 the minister may assign it to provincial regimes. How does that work for Akwesasne? You tell us. We have two provinces within one reserve. We are at a loss. Akwesasne has always maintained we will do it for ourselves.

If we cannot stop Bill S-8, we are looking for an exemption. We have the thoughts of our Iroquois communities across the St. Lawrence Valley up to Six Nations. We call it Iroquois Caucus. We look out for them; they look out for us. That is a significant amount of on-reserve people with water and waste water treatment plants.

Currently, Bill S-8 will not allow us to move forward at a community level or even at an Iroquois Caucus level. I beg of you, senators, do not move Bill S-8 through. You are only hindering the progressive communities.

With respect to Chief Chamberlin, we do feel that some people need help with waste water treatment plants. Akwesasne currently has a thousand homes on its systems with 27 kilometres of clean, safe, potable water. With the help of AANDC, we were able to do it. We still have 20 per cent more to go to continue this safe water project. If you want to see a difficult project, come to Akwesasne. It is 40 minutes away. We will show you that we had to cross waterways, the St. Lawrence, to get clean, safe, potable water from one house to another. We did that in collaboration with AANDC. We, as Akwesasne, have been doing stuff like this, collaboration, thinking outside the box, partnerships. Bill S-8 will no longer allow us to do that with water legislation.

With that, I will turn it over to our technician, Mr. Ransom, who has more information on the environment.

James Ransom, Director, Mohawk Council of Akwesasne: Thank you, senators. I wanted to address a couple of issues for you. The first one is with regard to section 5(1)(q) of Bill S-8, and that section deems First Nations the owner of drinking water or waste water systems in their communities. What it does not do, though, is recognize our ability as owners of those systems to effectively regulate them. Akwesasne and First Nations have a history of finding solutions to water issues, and the bill does not recognize that.

I wanted to share an example with you. In the 1990s, I was working at the Assembly of First Nations in their environment unit. We came across an issue regarding on-reserve water and waste water treatment plant operators. We found that provincial training programs for these operators were not working. The problem was that we were taking operators out of their communities and bringing them, in Ontario, to Toronto for training on equipment and processes that they would never see in their lifetime. As a result, the systems they were operating and maintaining were breaking down much before their lifespan.

We piloted, in Ontario and in Manitoba, a circuit rider training program, wherein we took seasoned operators and they became the trainers. Instead of taking the person out of the community, we took the trainer into the community, and they did hands-on training on the equipment they were going to use and that they knew, and it made all the difference.

The pilot project would eventually become Indian and Northern Affairs national Circuit Rider Training Program. It came about not from the provinces but directly from First Nations themselves. I think it demonstrates that we can be part of the solution if we are given a fair chance to contribute.

The issue for us is also that the language in Bill S-8, as Chief Adams said, relegates our bylaws to a secondary position while at the same time giving carte blanche approval to all provincial water laws and acknowledges them. That is just wrong. We cannot see any reason why laws that we develop that provide the same protection as provinces should not be recognized by this legislation.

We know that the provinces are not all consistent in that we are in both Quebec and Ontario and Quebec does not have the same standards as Ontario. Ontario is actually better. Because we follow best practices, even though we have water treatment plants in Quebec, they operate to Ontario standards. It just makes good sense, and so we implement solutions like that.

My last point is with regard to this legislation and that it needs to be responsive to the budgetary constraints that are occurring. Currently, the federal government is going through a cost-cutting exercise to help reduce the federal deficit. One of the government agencies taking the biggest hit is Environment Canada and for First Nations, Environment Canada has a role in waste water treatment systems. Under CEPA, and given the cuts the department is experiencing, it will be very difficult for them to maintain a substantial role in the implementation of this legislation.

Likewise, clause 5(3) of Bill S-8 fails to consider the political reality that exists in the provinces. The provinces, Ontario in particular, is looking to reduce costs, reduce the size of government, improve regulatory outcomes and improve efficiencies.

Section 5(3) flies in the face of the cost saving exercises that are taking place within the provinces. In Ontario alone, clause 5(3) would add regulatory responsibilities to the province. They are going to suddenly find themselves responsible for 133 First Nations' water and waste water treatment systems and they do not have the capacity to do that.

It is going to increase the provincial regulatory costs in a time of cost cutting and fiscal restraint. We think the solution is to let us take a more active role in regulating our drinking water systems. Akwesasne already has experience building relationships. As Chief Mitchell said, we have experience in building relationship with others; other governments and agencies around common interests. We have already taken the initiative. We have met with Ontario Minister of the Environment Jim Bradley and started discussing how we can form a partnership in which the province recognizes our ability to make our own regulations and we enter into a relationship where we exchange information, technical assistance and training when needed, in a cooperative fashion. That is coming from us to them and nobody is dictating that to us. There is an important difference.

We believe that Bill S-8 needs to encourage, promote and advocate for partnerships between the federal government, provinces and First Nations around common interests of safe drinking water for all people, such as what we are trying to do. We think a new clause should be added that goes something like this: The minister will exempt from this legislation First Nations that enter into agreements with respective provinces for the administration and enforcement of regulations made under subclause 4(1), so we become part of the process.

Those are the points I wanted to make and I want to turn it back over to Chief Mitchell.

Mr. Mitchell: Thank you.

In the last few minutes that I wanted to convey my thoughts to you as a conclusion and ask you this question: What does self-government mean to the Government of Canada? In what ways would you recognize self governance for First Nations that have expressed a desire to go in that direction? At some point in time, Canada has to say to us, self- government means this. At some point in time you have to say the law making powers go with it, the responsibility of self-government goes with it. When we talk about governance, jurisdiction and authority in Akwesasne with the government in Canada, it took us a long time to show them that we could do it. Now, they acknowledge that we are one the most progressive First Nations that has shown ability to get things done.

We talk about a partnership here: ways to fix it, mend it and make it strong. We appeal to you to listen to some of these thoughts that we bring to you. Now, the exemption part:

If an Aboriginal body in the final stages of negotiating a self-government agreement with the Government of Canada consistent with the intent expressed in 14(1) the Governor in Council may make regulations exempting this Aboriginal body from the regulations for a period not to exceed three years.

That was a precedent in the MRP. We are not asking to reinvent anything. We are asking for the same consideration because if we are handcuffed, that will send a signal to our community. The direction we are headed is to maintain this path we are on and developing the pride and accomplishments of people, not just our community. Many First Nations across Canada come to Akwesasne and ask how we did it. How did you develop this system? How did you train your people? How did you get them interested in this and stay on it? The contribution we can make is reinforcement of confidence.

Thank you.

The Chair: Thank you, chiefs.

Not to be argumentative Chief Chamberlin, but how do we handle this? We had the Atlantic Policy Congress here the other day and they are in favour of the legislation. We asked them specifically. Then we had the Assembly of the First Nations of Quebec and Labrador. Chief Madeleine Paul was here with a consultant and they accept the legislation. I know you qualified what you said before you disagreed with the legislation. You said clearly that you were not speaking for anybody else but yourself as the Union of British Columbia Indian Chiefs. Somewhere along the line, to use a term, we have to square the cycle. My understanding is we have great approval as well from treaties 6 and 8 in Alberta. They have not yet appeared before us so I do not want to speak on their behalf until we hear from them.

I hear your concerns, but can you understand the dilemma we are in? I believe it was Chief Mitchell or Chief Adams who made reference to the fact that one size does not fit all. We are listening to people from across the country. I am not sitting here saying that by any stretch of the imagination we are absolutely correct, but in the same breath this is the dilemma. There are those that want it as it is — they have said they before us — and now there is tremendous opposition to others. I am not questioning the legitimacy of your arguments. I am asking you to respond to a situation that has arrived before us as a committee.

I would also like to try to answer your question, Chief Mitchell. What is self-government? I think we have 22 modern- day treaties — and I am not speaking for the federal government — and I have been part of those for 19 years, starting with Nisga'a and with the Sechelt when I was in the House of Commons. We have modern day treaties that provide self- government. I am advocate of it and I put forward a piece of self-government legislation which I plan to reintroduce before I leave office here in November. To get back to Chief Chamberlin, would you mind commenting on that for us?

Mr. Chamberlin: When you reference the First Nations and groupings that have participated to date as you just have, my immediate response is then why was that same effort not provided all First Nations in Canada? If every First Nation as Canadian citizens we are equal to one another — where one Aboriginal right is no greater or no less than our neighbour's — there must be a process where we as the First Nations of British Columbia could engage with the federal government as deeply and as widely as perhaps you have in the Atlantic or other areas of Canada. However, I can tell you it is not so.

The Chair: Were you consulted at all?

Mr. Chamberlin: No, not in a meaningful way.

The Chair: Neither the summit or the union?

Mr. Chamberlin: The summit and the union do not consult on behalf of our member tribes. It must be one which respects the community-based, nation-driven approaches from our First Nations.

With my distant family, I think the difference in the scenarios we present to you shows the diversity of the issues we face in Canada, where the urban population or the ones with a large population base around them have a different set of circumstances and opportunities.

When you come to Gilford Island and jump on the plane and fly into our community you will not find a municipality that we can make an arrangement with. Therefore we wind up becoming quite independent and demand a different approach from what other First Nations may enjoy.

I can appreciate the challenge that Canada has, but I can also say that if you listen to the expert panel's recommendations we would not be here talking about this problem. The recommendations were clear and good money was invested on behalf of Canadians to arrive at what was meant to be direction for the government to embrace. By walking away from the very basis of those recommendations, the preconditions especially, you have just wasted millions of dollars. Those are valuable resources that could have been directed to helping a First Nation that does not have potable water or waste water management.

Senator Tkachuk: Just so I am clear, because I got a little confused in the questions with Chief Chamberlin, does Chief Chamberlin speak on behalf of all 104 or just his own reserve, or is he saying that the federal government should have consulted with all 104 reserves?

I am not quite sure exactly what process you are talking about, chief.

Mr. Chamberlin: I am fortunate enough to be able to speak from two hats today. I am here on the behalf of the Union of British Columbia Indian Chiefs. We have resolutions passed by the chiefs and assembly of our 104 First Nation members that have given direction to the union executive, which I am part of, to come and explain the flaws that we see with this bill.

When I speak on behalf of our tribe, I do that on behalf of the Kwikwasut'inuxw Haxwa'mis. I do that to try and illustrate for you all the challenges in front of us, both in terms of capacity but also in terms of infrastructure and the resources that are necessary, and also the meandering approach that the government has taken to meet the needs of our isolated community.

Where we are fortunate, in comparison to some other communities, is that we have a measure of progress, but it is still halfway across the fence and left.

Senator Tkachuk: Just so I am clear again, the consultation process, did it take place with anybody in B.C. or with any reserves in B.C. or just not your reserve?

Mr. Chamberlin: I know that the expert panel had a number of regional sessions for First Nations to —

Senator Tkachuk: I am not talking about the consultation process.

Mr. Chamberlin: Not that I am aware of.

Senator Tkachuk: They spoke to no one?

Mr. Chamberlin: No. What I have also heard from other provinces is that there has been an absence of due diligence and adequate consultation.

The Chair: I think we should determine that. I am not challenging what you are saying at all, but it would be interesting to know if there was no consultation at all in British Columbia.

Mr. Chamberlin: I can tell you, when it came down to Environment Canada's waste water regulations, I assisted in developing the consultation model for the province of B.C. At that time they wanted to have one session for 203 First Nations of British Columbia. I pointed to a different province and said they have a different number of bands or First Nations, but they also enjoyed one session. Because of the difference in number we demanded to have more sessions. We wound up having three regional sessions, and that is not consultation. That is information sharing and gathering, but when it comes down to the development of First Nations perspectives it has to be deep and thorough consultation.

Senator Hubley: Thank you for your presentations this evening. What role did the expert panel play in British Columbia? You have mentioned that and that their findings were important to you. What role did they play in British Columbia and did you have an opportunity to provide input?

Mr. Chamberlin: Thank you for your question. The expert panel did come to British Columbia on a number of locations. I cannot remember the exact number. I know I stood in front of them and shared the thoughts and wishes from our First Nation.

I draw your attention to page 49 of the expert panel report. At the bottom of the page you will find there are preconditions to provide resources to discuss and deal with high risks, as an example. It clearly says that the first and most critically to be addressed is that resource gap for the infrastructure.

We participated in understanding and sharing our wisdom and traditional ecological knowledge, as my friends have also spoken of, but that roll-up report is what I am referencing in terms of Canada forgetting that it is even there and charting a course independent of the recommendations.

Senator Meredith: Thank you so much for your presentations. I always enjoy the passion that comes to this committee with the various witnesses who have come and spoken to us.

I am clearly a little bit confused, similar to Senator Tkachuk, with respect to the consultation process. The department has appeared before us, and in 2009 they had 13 one-day sessions. In 2010-11 they also had further sessions. Mr. Chamberlin, I am a little concerned that we are getting conflicting information as to whether information was available and parties chose not to participate because they thought maybe the process was flawed.

Can you clarify for us as to whether somehow information got to your membership and they chose not to participate or there was strictly no communication whatsoever of the process of Bill S-8?

Mr. Chamberlin: In terms of Bill S-8, I have not known of any consultation. I know Bill S-8 evolved from Bill S-11 and the modifications, I guess the government is saying they have had, this is consultation. This is how the government will characterize it, but we are not talking to the Kwikwasut'inuxw Haxwa'mis First Nations or the Squamish First Nation here. We are talking about a collective.

The government is characterizing what is consultation to meet its needs rather than actually having meaningful consultation at the community level. If you have a First Nation that is able to enter into a municipal-type agreement with the municipality for the provision of safe water, the consultation with them will look quite different than if you come to Gilford Island and talk to us about the challenges we have.

A regional session is where we group a number of First Nations together so we sign in and we can count it off as consultation, is what the federal government chooses to do. It is inadequate. That does not give respect to the honour of the Crown as described in Supreme Court of Canada rulings.

Senator Meredith: Chief Mitchell, I applaud the efforts your community has made. You have said that clearly this legislation here will almost do away with any progress that you have made in terms of your approach to ensuring that there is safe drinking water and proper management of your waste water.

Can you go on a little bit further as to why you feel that this legislation, as is, will do away with the progress that you have made and the fact that you have taken on the process of training your own people? As a businessman I applaud an individual taking initiative and doing things to better their communities and the training of our young people, especially that, and within the community. I applaud you for that.

Could you elaborate for me on the fact that you feel that this will push you back? Chief Adams, you indicated that this is not like a one-glove-fits-all scenario here. Would you elaborate for me, please, if you could?

Mr. Mitchell: Sure. In 1964, when they first introduced to the community the desire of the committee to have regulations the committee could have, it was not something at the time that Indian Affairs would consider. However, they did it, and it was very basic. It was called a bylaw, and it seemed innocent enough for the minister to say let us see what they can do with that. What I am talking about is thereafter. The ability to see things through builds confidence in a community, from leadership to families in the community. That is what happened in Akwesasne when I said that, at one time, we were the most polluted First Nation in Canada. Little by little, people began to learn more. We went to the elders and said, "We need your knowledge of the natural world, of your thoughts on science, from a traditional perspective." We said to people who had graduated and were coming home, "We need you to help us with this." Little by little, the combining of the two provided that confidence, and then we started making regulations, codes and laws.

The training part was the same thing. You have to build that confidence. All of a sudden, you are giving this authority to the province, but you are not recognizing any of the authority of the First Nations. That is the basic premise, and our basic objection is that you need to have the law making power, as a First Nation, to build that capacity, to keep on building and developing. Instead of Indian Affairs, we are now looking at the province. The conflict for us is that we are looking at two provinces that have differing laws, codes and policies. We have learned from our experience in health and every aspect of that that they do not always have the same level.

The St. Lawrence River runs through the middle, but it does not run in a straight line. It runs in zigzags around islands. When you going down the St. Lawrence, one minute you are in Canada, and the next minute you are in the U.S. You are in New York State. You are in Quebec. You are in Ontario as you go down. That is probably a good example of the geographic situation, and I really wanted to have the opportunity to invite this Senate committee to come and visit Akwesasne because you will see what the community has done in spite of all of the obstacles.

Today, as I said last year, we have an issue with CBSA. They are now in Cornwall, and, every time I come home from work, I have to go across and report and then come back. We tie up the bridge, 80 per cent of our population. Even though it was two years ago and they thought they would break our spirit, the Mohawk people said, "In spite of that, we will continue to live and abide by laws that this community will make." When I said that we have our own courts, our own justice, it is a thing that people will follow and acknowledge, and it is consistent with the laws in Canada and its provinces.

What I am talking about is that if you take that away from them — you take away the confidence — we will regress to the level that other people find themselves in, not having the opportunity. It was not so much that money was there. It is that we have to develop the confidence of the people to return home and bring their skills back. Then, we will have the leadership and the confidence to make those laws that are good for the community and probably good for the provinces and the country.

That is our contribution. I will defer the other question you had to Chief Adams.

The Chair: Colleagues, we have to get through this, so I would like you to tighten the answers a bit. Would you please be so generous as to do that?

Mr. Mitchell: No problem.

Mr. Adams: Will do. Since 2004, we have opened up our class II water treatment plant. OFNTSC remains vigilant that it is impeccable, but you have needs up north — Kashechewan. One size does not fit all. We are fortunate enough to not be in Kashechewan's dire need. We have resources, so, when I say one size fits all, we would like you not to group us in that same way. We are fortunate enough to be progressive, and that is what I mean when I say that one size does not fit all. That is it.

Mr. Mitchell: What we are really saying is this: Do not make a bill in that mode of one size fits all. There should be provisions in the bill that acknowledge that there are large, medium and small First Nations. Somewhere in there, there is the opportunity for First Nations to fill in those blanks. That is what we are trying to say.

Senator Meredith: Thank you, chiefs.

Chair, I have a few more questions, but I will ask them on second round.

The Chair: All right, that is great. Thank you.

Senator Tkachuk: Welcome. We all agree on one thing. We all agree we need safe drinking water. The principle of the bill is agreed to, but, obviously, you have some disagreements with the substance.

Chief Chamberlin, just so I am clear because I want to continue the queries that I made earlier, my understanding from you is that there are 203 First Nations in British Columbia, of which 104 belong to the association that you claim to represent here.

Mr. Chamberlin: I do not claim to. I am here representing the Union of British Columbia Indian Chiefs, and we have 104 members.

Senator Tkachuk: I understand that. Because you spoke about your own reserve and the problems of the bill representing your organization, I just want to make clear which is which. Is the organization that you represent opposed to bill or opposed to certain parts of the bill?

Mr. Chamberlin: I believe I was pretty clear that we reject the bill in its present form, that it needs to be abandoned and that it needs to be redone with adequate and thorough consultations with the First Nations in British Columbia, as well as First Nations across Canada. That was passed by resolution by the chiefs and assembly.

Senator Tkachuk: Of the 104 members?

Mr. Chamberlin: Of the 104.

Senator Tkachuk: Do you know if the other 100 were consulted?

Mr. Chamberlin: Not that I am aware of. This is something that has landed under the radar, and I think —

Senator Tkachuk: Was there consultation on the previous bill?

Mr. Chamberlin: No. I believe that you need to take from the discussion here today that the Union of British Columbia Indian Chiefs' position on Bill S-11 and Bill S-8 is consistent. It has not changed, and it is the voice of 104 First Nations in British Columbia. That would inform your question about the level of consultation and the comfort level in British Columbia in relation to the efforts of the federal government.

Senator Tkachuk: Of the 104 First Nations, how many of them have a drinking water problem?

Mr. Chamberlin: I do not have those figures off the top of my head.

Senator Tkachuk: Do you have an idea?

Mr. Chamberlin: I would have to find out. I do not have an answer for you, senator.

Senator Tkachuk: There must be some that do not have a drinking water problem.

Mr. Chamberlin: I know that up in the Fraser canyon, where we have a number of our member tribes of the Nlaka'pamux Tribal Council, you will find that, by and large, the infrastructure in place to meet their needs has aged. It needs replacement. It may be providing some measure of water, but on its last legs.

Senator Tkachuk: It has infrastructure problems, much like many communities outside of the reserves, and they are upgrading their sewage and water systems and all the rest of it.

Mr. Chamberlin: I would agree, but I also understand that the federal government has a different relationship with First Nations than it does with other Canadians. That fiduciary obligation is well defined, and, with that, comes a certain level of responsibility. What we are seeing now is that the federal government is not living up to the broad description of that fiduciary responsibility, whether it is budgetary cutbacks or the lack of resources.

Senator Tkachuk: Let us talk about that for a moment. What is your responsibility?

Mr. Chamberlin: Our responsibility is to ensure that the machinery or the equipment that we do receive is kept in good working order and that when we can, if we are in position to contribute to our own needs, we do so. I can report to you that when our village on Gilford Island set out to rebuild all of the 26 homes, we contributed over $1 million toward our housing project. We are one of those First Nations that has severe challenges in terms of economic development, and yet we paid our part. We participated, and we owned what we felt we needed to in terms of rebuilding our village. It took a lot of effort from our First Nation to do that, and not all First Nations are in a position where they can do that. If you are in a larger, more urban setting, you could possibly be in a different financial bracket or have a different means to approach your capital and infrastructure needs.

Senator Dyck: Thank you, gentlemen, for your presentations tonight. You were very clear in your assessment of the bill. I think it is quite interesting. Not only do you come from different parts of the country, but it sounds as though the water infrastructure you have in your areas is at very different levels. In British Columbia, you were talking about having an interim solution, and it sounds like at Akwesasne you have probably good infrastructure, yet you both oppose the bill.

As I recall, Bill S-11 was withdrawn and there were press releases that went out that said the department was going to rework the bill in active consultation with First Nations. So far, I do not think that has happened to any extent that would satisfy the people that have appeared before us. Consultation is definitely a big part of what should have happened, but if the bill gets passed, it will be very important in terms of the development of the regulations.

My first question is: If the bill is passed and regulations are developed, what is your expectation? How will you go about ensuring that First Nations are really accommodated, consulted and your input actually listened to? I think you used that term, Chief Chamberlin. Will the government actually listen to First Nations when the regulations are being developed? How will you ensure that happens?

Mr. Chamberlin: For the record, we at the Union of British Columbia Indian Chiefs will be extremely disappointed if this bill goes through. We have been very clear and detailed in our submissions and responses to Canada that the comfort level is not there with the consultation that has gone on. I, as the chief of a small First Nation, know of no consultation opportunities for Bill S-8, period.

I saw those press releases. We probably viewed them perhaps a little differently, but through the work we have done at the union assessing and analyzing the differences between Bill S-8 and Bill S-11, there is not much difference at all. There are very small changes, and they were not the changes put forward by the Union of British Columbia Indian Chiefs.

That does not set the table well for comfort in further consultation and the notion of being accommodated adequately.

Mr. Adams: If I may, I would like to explain something. There was no consultation. Consultation needs to be defined. That is what First Nations across Canada want to know. Is having coffee with an INAC or AANDC official consultation? I have seen where you call in or there is a webinar or you have to make your way to AFN. Which one is the consultation? If you clearly define what consultation is, then you will get true consultation.

We had a meeting about Bill S-8, but AANDC did not seek us out; we sought them out. I went to Alberta to look for them. I turned around and went to Niagara Falls the next day. I was following them. You tell me, do I have to chase for consultation or is AANDC, who is supposed to be the overseer, supposed to look for us? You tell me.

Senator Dyck: Thank you. You have made some good points. I think it is clear we need to define what that term means.

Second, the expert panel I believe recommended that there should be a water commission that is part of the regulatory process. We had witnesses from the Atlantic Policy Congress of First Nations Chiefs, and they also recommended that there be a regional water authority. It sounds like, for them, working across their region in this fashion was a way of ensuring that all the individual First Nations within the region were active partners in developing whatever it is they needed for their region.

If something like a regional water authority was incorporated into the bill, would that help make it more acceptable?

The Chair: Would you like to answer that, Grand Chief Mitchell?

Mr. Mitchell: Yes. First, the Great Lakes Commission is in place. First Nations, Native Americans on both the U.S. and Canadian sides play an integral part in it. Dr. Henry Lickers, among others, holds a prestigious position there, as well as other Native Americans, and I want to use it as an example. On the U.S. side, the recognition given to First Nations in terms of authority and jurisdiction is equal to that of the state. It is placed upon them, and then partnerships are formed from there. The wish of Akwesasne on the Canadian side is to be given that opportunity and to have that as a goal and objective.

Senator Dyck: If that sort of arrangement were part of this bill, it would make it more acceptable, if I could sum it up that way?

Mr. Mitchell: Definitely.

Senator Dyck: Chief Chamberlin?

Mr. Chamberlin: When it comes to a regional water authority, I cannot comment on what the Atlantic provinces have chosen as a route forward, but my first assumption would be that it was based on the realities found in Atlantic Canada, whether it is geographical, whether it is proximity to urban settings or what have you.

In British Columbia, there is a vast difference between areas in the province of B.C. from northeastern B.C. over to the northern coastal areas to northern Vancouver Island where I am from. As much as I would like to give you an answer, that is the kind of dialogue and consultation that we need to endeavour to arrive at a proper answer for that.

The Chair: Given the urgency of the situation — fresh drinking water must be one of the most urgent things in the country; if you have not got safe drinking water, you are in trouble — how would you provide an amalgamation process? You cannot consult with 630 First Nations, to be realistic, even 203, such as in B.C. To say you would have to consult with each and every one of them is a difficulty. I have been sitting here for 19 years and hearing about accommodation and consultation not taking place properly concerns me.

You are the vice-president of the union. Do you not agree that it would be impractical to expect the government to consult with all 630 some bands? There must be an amalgamation process or something that would facilitate consultation but not necessarily with every living, breathing band.

I am not trying to minimize the importance of anyone, but I am trying to look at the practical aspect of it.

Mr. Chamberlin: Thank you for the question, Senator St. Germain.

If I could be so bold as to describe to you perhaps a grouping effort of consultation, I would encourage the Government of Canada to perhaps approach various tribal councils found in British Columbia. Whether it is the Kwakiutl District Council, which has a larger group of nations that are part of it; whether it is the Nlaka'pamux tribal council; or whether it is the Stl'atl'imx or Tsawataineuk tribal council, you will find there are groups of First Nations that self-identify with one another and are found within geographical similarities. That may be one way to approach it if there is no appetite to meaningfully consult with all First Nations.

Senator Sibbeston: I was very concerned about the statements made by the Akwesasne representative who said they are concerned about whether this bill can in any way take away from what they have.

I was just looking through the regulations to see whether that is the case. I see that while the minister can make regulations with respect to the operations of waters and disposal of sewage, under clause 5 it can also confer on any person or body the power to regulate drinking water. They can confer on any person or body any legislative, administrative, judicial or other power that the Governor-in-Council considers necessary to effectively regulate.

I get the impression from this that it is possible that the government can give power, as it were, to a First Nation to operate its own system. I am wondering if this might be the way to have an exception or special recognition of the advancements that the Akwesasne people have made so that they will not be held back or diminished in any way by this bill.

Have the representatives seen this? Do you think this might be a way in which the government can recognize the work you have done and the system you have in place and not take away from what you presently have?

Mr. Adams: The bill also contains clause 7 with regard to First Nations laws. Since 1964 we have taken the initiative. Through the Indian Act they allowed us to make bylaws with ministerial approval.

Clause 7 says that if our bylaw does not accord with federal regulations, the federal regulations will supersede our laws. What sense is there in us making bylaws if Bill S-8 will trump them?

Clause 5 should include "may incorporate by reference laws of a province." Why not laws of a First Nation as well? We have customary laws. How can we advance ourselves if Aboriginal Affairs and Northern Development Canada does not recognize that either?

We are trying to move ahead in Akwesasne, but it seems to me that Bill S-8 will hold us back. That is why we cannot support this bill in its current form. We would like an exemption. I do not know if that answers your question.

Senator Sibbeston: Mr. Chair, we obviously need to study this area. It is a serious contention of the representatives to say that they are concerned that this bill will in some ways hold them back and not recognize the advancements they have made. That is a significant point. Perhaps we should have our researchers and legal advisers look at this to see whether that is the case. If we think it is important enough, we can consider an amendment, as they have suggested, to provide for exemptions or to provide for the recognition of First Nation laws that govern this area.

The Chair: In other words, you are concerned that this bill could possibly override any of the bylaws that surround the infrastructure that they have in place?

Senator Sibbeston: Yes. Let us respond to their concern in a very real way. If it is the case, let us, as the Senate, do something about it and amend the bill to deal with situations such as that in Akwesasne. They are probably at the forefront of water and sewage systems in our country. We should ensure that this bill does not take anything away from what they have accomplished. That is just an idea. I suggest we pursue that and get a legal opinion on it. If it is the case, we should seek to amend the bill in order to satisfy them.

The Chair: We will seek a legal opinion.

Senator Sibbeston: The representatives of Akwesasne have invited us to go to their nation to see their system. I would be very interested in doing that, particularly since it is only 40 minutes away. Where I live, we get water from the Mackenzie River, which is a very big river that has very clear water, as yet. The water is pumped into a big tank. I imagine that after the water settles someone sprinkles chlorine or fluoride or whatever so that the water is good. That is my understanding of a water system, but I am sure it is more sophisticated and complicated than that.

We are talking about systems like this. Why not take advantage of the opportunity given to us and see what a water and sewage system is? We could visit their reserve sometime in the next few weeks and see for ourselves. If senators are willing, I am sure that can be arranged.

Is that right, Mr. Chair?

The Chair: We can discuss that, yes.

Mr. Chamberlin: I would like to extend a similar invitation to you to come to Gilford Island.

Senator Meredith: We do not want to leave you out.

Mr. Chamberlin: We would love to host you. We would love for you to fly in and see that there are no roads that will bring you to our village, that there are no municipalities to work out creative agreements with. You can stand in the little trailer there that has three reverse osmosis water purification systems that are in conflict with one other and not operating in the way INAC wanted them to. You can see for yourselves exactly what an isolated community faces with the half measure that we have.

The Chair: Thank you, panel.

Senator Meredith: Grand Chief Mitchell, I am hearing that you would like an amendment to clause 5 to protect treaty and other rights. What recommendations would you make that would enable you to support the bill?

Mr. Mitchell: I will read to you the proposed clause 5(3) that we drafted for your consideration:

Regulations made under Section 4 may incorporate by reference laws of a province or a First Nation, as amended from time to time, with any adaptations that the Governor in Council may consider necessary.

When you recognize that a First Nations can be proactive and has the ability to achieve the required objective, give them that opportunity. Put those provisions in the bill.

Senator Meredith: Thank you.

Senator Lovelace Nicholas: Grand Chief Mitchell, you said that big industries are polluting your lands and water. Would this legislation not at some point stop the pollution?

Mr. Mitchell: In recent years, it is not the legislation that has stopped the pollution. For one reason or another, both in the U.S. and in Canada, those industries have ceased to operate. There was a major pulp and paper mill just west of Akwesasne, on the Canadian side. There was a Reynolds aluminum plant and a Chevy plant. They were all around us, and for economic reasons, they no longer exist. It is the same situation further up the river. Things have changed. Because of that, they have allowed our voice through the Great Lakes water commission and other opportunities to lead to keeping the St. Lawrence River clean.

With respect to on-reserve water, there has been more involvement of First Nations in implementing many of the concepts of law-making and authority.

Mr. Adams: Supplemental to that, one of the senators said the Mackenzie River has clean water. Our water comes from the St. Lawrence River, and our water intake is less than a kilometre away from two or three environmental protection agency contaminant sites.

I would like to know, under source water protection, how will AANDC allow us to go international as source water protection? That is a question we would like to pose to senators.

Mr. Mitchell: That is the reality we live in.

Mr. Chamberlin: I would like to add supplemental dialogue to this as well.

When I think of industry impacts in British Columbia, I think of the Okanagan nation; they have gone to court to shut down a logging operation happening in pristine valley, where they gather their drinking water from. Then I think of different mining operations going on in British Columbia and the impacts they have on source water.

I mentioned this earlier, that when the government talks about source water protection, it needs to focus on developing infrastructure or an agreement with the province working with First Nations as to how to actually go about protecting source water. When you talk about altering the industry of logging and mining, you strike at the heart of the provincial government, which are the resource revenues they enjoy from those activities.

Senator Lovelace Nicholas: Many First Nations are rejecting this legislation. In reality, what if the bill passes and First Nations reject it? What would be the consequences, if any?

Mr. Mitchell: We will continue to advocate safe drinking water, as we always have. Laws that affect us will come and go. With some of them, we know the intent.

The reason we are here is to say, you have time to make it a good law, an even better law. That is why we are here. We cannot force you to say, "Do it this way." We are hoping that when you hear our thoughts and ideas of what provides for that and how we have done it, it might convince you to determine things should be changed. That is our objective of being here.

Mr. Chamberlin: Your question sounds to me like a question of risk management. How can we honestly answer that on behalf of all First Nations in Canada? I am curious to see what will happen within First Nations across Canada in the coming years, when we look at what this government is doing in terms of the Fisheries Act, in terms of environmental assessment, in terms of water and in terms of how they are moving away from the words and the rhetoric of supporting First Nations in recognizing ourselves.

Senator Lovelace Nicholas: Thank you very much.

Senator Ataullahjan: Thank you for being here this evening. My question is to Grand Chief Mitchell and Chief Adams.

What can be done to develop capacity development at the community level, as you mentioned? What exact steps need to be taken to become a progressive nation such as yours?

Mr. Mitchell: In the last so many years, we have received a lot of visitations from other First Nations, and sometimes they merely ask, "How did you do it? What gave you the confidence to take this on?" The way we see it, they could do so as well if they had the opportunity and the confidence to go ahead and build something and they had some idea they could implement something people would accept, knowing it is good for them.

We do a lot of consulting. We share any success we have had with other First Nations when asked. We are in contact with the Chiefs of Ontario, which serves 133 First Nation communities, as well as the chiefs of Quebec, even at the national level when we send people out from Akwesasne to help develop law-making, concepts and how to address clean drinking water in their communities. We supply our input and try to be as helpful as we can.

I can only tell you from that experience that people are willing to try, and that determination reflects on our ability to share that knowledge.

Mr. Adams: Capacity for development does not come free. We are using some of our own source revenue. When AANDC says they will do 80 per cent of waste water operation and the First Nation must do 20 per cent, we can stand here and tell you it is not an 80/20 split; it is a 50/50 split. To operate our water treatment and waste water treatment plants, our budget is underfunded by 30 per cent. We have the numbers to prove it. Do not be misled that funding is there; it is not. We are fortunate enough, however, that we have the experience and the education in that we are able to do foresight into what we need for the next 25 years. It all comes down to capital.

You have to support Chief Chamberlin's northern community in order to do that capacity development, to help them. We can do what we can to share our ideas, but it is AANDC that is ultimately responsible for capacity development.

Senator Ataullahjan: Thank you.

Mr. Chamberlin: When you talk about the need for capacity, you also have to talk about the need for retention. With the way funding goes now, there is not full-time work for someone in our community. Yet if we really want to be meaningful and sincere about developing capacity, we are talking about someone that must get up to a Level 3, which will take six to seven years, then offer them a part-time job in an isolated community where industry can then pluck them away somewhere else, and we are starting all over again in terms of capacity development.

There have been several studies across Canada that show the poaching of our capacity to various industries in Canada. We have to be cognizant of that. We need to ensure that when you build a water treatment plant in an isolated community, just as you do when you build a school in an isolated community, that there are resources included in the project to build a place for the water operator to reside. I think that is a piece that has been missing in terms of any formula the government has. It is a stark reality that there is a need for accommodation, and that accommodation will be one of the things that needs to be in place to retain the persons you develop capacity with.

Senator Demers: At the beginning, Chief Chamberlin, you talked about the money and that there is not enough. I know it is not all about the money, but it seems to be a strong point.

In 2003 there was $600 million, and as of today, there is $1.9 billion. Is there something I do not understand? Because there are so many tribes and groups, is there a lack of communication, or is the money not being channeled in the right direction?

I am not saying that is enough. Do not get me wrong. I respect what was said tonight, but there seems to be a lack of accountability towards all the money that has been given.

Does what I am saying make sense?

Mr. Chamberlin: Yes, it does. I would agree with you. The government is the one who is not being completely accountable with the amount of money you have just reported. I would love to see a breakdown of how much money made it out of this valley to the communities. I say that knowing all too well that with the bureaucracy and the amount of money allocated to First Nations, we can focus on the beginning figure all we want. If we are going to do that, we must acknowledge what it takes to manage that money within the confines of AANDC or any other department and look at what is actually getting out to the communities.

Of that money you described, I can only relate to the experience of our community. It was a $5.5 million project because the needs kept getting bigger to make sure it was operational. In the end, the plan approved by AANDC was flawed. I think about what was going on in and around our community when the water went bad: There was blasting on a logging road up top of the mountain just behind our village. Are the two related? I do not know, but it went on. I am curious to see just how much of that $1.9 billion makes it out of Ottawa. I think we would all be slightly disappointed.

Senator Raine: It is good to hear from all of you. I congratulate Akwesasne on the job you are doing and the suggestions you have given for possible amendments. Certainly, we will take a good look.

I understand that the bill is proposed framework legislation and that it is not designed to be a one-size-fits-all. It says in the summary that regulations could be made on a province-by-province basis to mirror existing provincial regulatory regimes with adaptations to address the circumstances of First Nations living on those lands. Even within a province, which has regulations, there would be a need to discuss it within the province at the local First Nation level. I understand that we need the framework to move forward but the devil is in the detail, and the detail will be developed in close — we hate to use the word — consultation, but you cannot regulate people who do not accept the regulations. All of us are here to try to make it better in delivering clean and safe drinking water and protecting the land on First Nations.

The sad thing for me is that there seems to be a total lack of trust and confidence. When trust breaks down, people have to come together and reach out to each other.

Mr. Chamberlin, are you, in your First Nation and in the Union of B.C. Indian Chiefs, ready to reach out to the federal government to try to make something work, even if this bill goes through, at the regulatory level? Can we not work together?

Senator Meredith: Can we all get along?

Mr. Chamberlin: Our First Nation would be willing to participate in developing something prior to the bill getting through — a real opportunity. You characterized that trust is the major issue. I think back to one of the media that asked me whether I was hoping that the Liberals won in British Columbia or the NDP. I said neither had done a great job for First Nations people, period. I can say, and I think it is shared across Canada, that we are still waiting for the government to live up to what its courts described that it must do in terms of its behaviour.

We just received a judicial ruling where the Government of Canada characterized regional sessions that I participated in with the fisheries council in consultation with our First Nations. That was just yesterday. That is what you are up against. The behaviour of the federal government is the albatross around our necks because it has not been honourable. If it had been, there would not have been so many Supreme Court of Canada rulings to the contrary.

I would like to see the government come forward and do something meaningful. I would like to see the government describe, as my friends from Akwesasne talked about earlier, what a consultation is. We need to have an agreed upon definition. I believe the next step after that would be the required resources to actively participate. The Government of Canada will have a much tilted table with the resources they enjoy versus a First Nation like ours having to travel and then trying to present our case. The reality of a small band is that we have just cut our office staff back by two days every pay period across the board because the resources we get from the government is not adequate. Then, you want to add to that our participation in the development of regulations. It will take a lot of expertise, time and energy; and we do not have the resources to do it. It is not something we can do at the side of our desk amongst everything else.

Senator Raine: I understand. You asked the question: What is consultation? Who do you think should answer that question?

Mr. Adams: A senator had said that it was worthwhile looking into what Akwesasne had said. I found it funny that he was looking at you guys and not at us when we were the ones doing it. What kind of consultation is it when you do not recognize that we are sitting here and you do not say, "Let us work with you?" No, he turned around and said, "Let us look to Justice to do what we need to do, not the First Nation."

The Chair: I think he was reacting to your request and wanting us to respond as a committee.

Mr. Adams: I understand.

The Chair: He may have been looking the wrong way, and I do not know why. To be fair, I know Senator Sibbeston really well; I have worked with him for 19 years on this committee. He was trying, I can only surmise, to get us onside to get a legal opinion on what you had brought up so adeptly.

Mr. Adams: A legal opinion through your legal department and our First Nation. That would be consultation to work on a clause.

Senator Tkachuk: Why do we not do 600 of those?

Mr. Adams: We are here for Akwesasne.

Senator Tkachuk: Exactly, but I am trying to ask you seriously: How would we do 600 of those?

Mr. Adams: I understand your frustration. I would like to refer to your framework and liken it to a house. It is just like a house. You have to build a frame for the house, and we have to live under the framework. It is not outside Canada that lives under the framework, we have to live under it and deal with the workmanship. We would rather make it better now before we start adding the walls.

Senator Dyck: I believe it was Mr. Chamberlin who said something about risk management. One concern the committee and everyone has is safe drinking water. In your opinion, if we delay this bill, would we be increasing the risk to individual First Nations people? Will this bill do anything to make the water safe? If we delay it, are we increasing the risk? We are being told by some people that if we delay it, people will die or get sick.

Mr. Chamberlin: I would suggest going back to the expert panel's recommendations. It talked about the need to have adequate resources to bring everybody up to the same level. If we do not do that, then people's lives will be at risk.

This proposed legislation does not provide for that, so we can pass this legislation tomorrow, but we will still need a lot of resources to provide safe drinking water. Do the regulations actually help on the ground? I would suggest that the government really take a look at its commitment to First Nation peoples and that it live up to what the courts have defined for it in terms of consultation and get the water systems up to snuff before anything else. That would be my first step. To capture a comment on the consultation, recent history shows that Canada developing consultation without the role of First Nations has not been received well, so let us learn from that. Let us develop and define a consultation process in which we equally participate, in definition. Without deviation from the norm progress is not possible.

The Chair: Did you want to respond to that Chief Mitchell or Chief Adams?

Mr. Adams: We look at it as yes. I would like to say ditto. We could sit here and talk for two more years, but will that fix the water problem? No. You need to fix the water problems first and at the same time, you make the bill stronger.

Senator Dyck: Thank you. That is clear.

The Chair: I wish everybody had a modern day treaty and I think you brought that up. That is why, in my home province of British Columbia, I am concerned. I am concerned about the fact that we are making some progress, but not quick enough. I look at problems from the government side and I see challenges on the First Nations side as well.

I want to thank you all for appearing before us and being as candid and as straightforward as you have been in your responses. We may not agree on everything, but at least if we agree on something we have made some progress.

(The committee adjourned.)

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