Proceedings of the Standing Senate Committee on
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
Senator Tkachuk: Let us talk about that for a moment. What is your
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
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
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
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
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
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
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
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
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
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
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
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
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
(The committee adjourned.)