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Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 18 - Evidence - May 16, 2012

OTTAWA, Wednesday, May 16, 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 6:48 p.m. to give consideration to the bill.

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


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

The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally. Today, we will be continuing 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: The Department of Indian Affairs and Northern Development, Health Canada and Environment Canada. First Nation communities, through their chief and council, are responsible for the design, operation and maintenance of their water systems, for which they assume 20 per cent of the costs.

This evening, we will hear from witnesses from the Nisga'a Lisims Government and a representative of Treaty 6 and 7 of Alberta.


Before I give the floor to our witnesses, let me introduce the members of this committee who are here this evening.


From the province of British Columbia, we have Senator Larry Campbell. Senator Dan Lang is from the Yukon. Senator Ataullahjan is from Ontario. Senator Meredith is also from Ontario. Last but not least, Senator Dennis Patterson is from Nunavut. Welcome, senators.

Members of the committee, would you please help me in welcoming our witnesses from the Nisga'a Lisims Government, Kevin McKay, Chairperson, and Jim Aldridge, Legal Advisor. With them at the table, from Treaty 6 and 7 of Alberta, is Clayton D. Leonard, Counsel.

I must add that we have just been blessed with the arrival of Senator Munson from the province of Ontario.

Witnesses, we look forward to your presentation. Chief McKay, would you do us the honour?

Kevin McKay, Chairperson, Nisga'a Lisims Government: Thank you, Mr. Chair. First, let me introduce myself formally to all of you. My name is Kevin McKay. I am the Chairperson of the Nisga'a Lisims Government, the government of the Nisga'a Nation. I am joined tonight by my colleague to my left, Mr. Jim Aldridge, who is General Counsel to the Nisga'a Nation. Mr. Chair, through you to the committee, I want to thank you for this opportunity to appear as witnesses before the Standing Senate Committee on Aboriginal Peoples in respect of Bill S-8.

Perhaps I could elaborate on the people I represent, Mr. Chair. The Nisga'a Nation resides on lands that are in northwestern British Columbia. As committee members will know, we are the first modern treaty in British Columbia. For the information of committee members, last Friday, Nisga'a Nation celebrated the twelfth anniversary of the effective date of the implementation of the Nisga'a Final Agreement.

Mr. Chair, almost exactly one year ago, the Nisga'a Nation and other members of the Land Claims Agreement Coalition identified serious threats to modern land claims agreements posed by Bill S-11, which was entitled the Safe Drinking Water for First Nations Act. Bill S-11 died on the Order Paper when last year's election was called.

On February 29, 2012, the government reintroduced the legislation in the Senate as Bill S-8. Even though it has been somewhat changed, in our view it remains highly objectionable and a potential threat to section 35 of the Constitution Act of 1982 in general and all land claims agreements in particular.

Like Bill S-11, the impact of the bill, if enacted, will be most profound and immediate for Indian Act bands. However, I want to remind the committee that as of May 11, 2000, the Nisga'a treaty has replaced the Indian Act and we are no longer considered Indian Act bands. However, as set out below, it raises serious concerns for the Nisga'a Nation and other groups with modern treaties.

There has been no consultation whatsoever with the Nisga'a Nation in respect of the bill's application to groups with land claims agreements, nor, as far as we are aware, any of the other groups with modern land claims agreements.

Of course, we want to be clear that no one, including the Nisga'a Nation, is against something as honourable as safe drinking water for First Nations. Our appearance before this committee tonight is in respect of our objections and our concerns regarding the way in which this bill, if it proceeds as is, will breach the provisions of the Nisga'a Final Agreement.

In particular, the Nisga'a Nation's main concerns are in respect of clauses 3, 7 and 14 of Bill S-8. I will ask my colleague, Mr. Aldridge, to elaborate further. Thank you.

The Chair: Thank you, Mr. McKay.

Mr. Aldridge, would you proceed, please.

Jim Aldridge, Counsel, Nisga'a Lisims Government: Thank you very much, Mr. Chair. As Chairman McKay correctly indicated, the Nisga'a Nation has significant legal concerns with the contents of this bill. To explain why the Nisga'a Nation would have those concerns, it is necessary for senators to first understand the application of this bill.

As you know, under clause 2 of the bill, "First Nations" is not restricted to Indian Act bands. In paragraph (c) of the definition of "First Nation," it expressly includes what it refers to as an "Aboriginal body" named in the schedule. Similarly, "First Nations lands" include the lands of an Aboriginal body that is named in the schedule.

How do you get on the schedule? Clause 14(1) of the bill says that it would be at the request of the Aboriginal body that is party to a land claims agreement or modern self-government agreement with Canada given effect by an Act of Parliament. In other words, the bill will apply to an Aboriginal body other than an Indian band if that Aboriginal body has a land claims agreement, there are lands subject to its jurisdiction and it requests to be added to the schedule. I will return shortly to the concept of request. The bill leaves the Governor-in-Council with total discretion as to whether to add or delete such a body from the schedule. That is why we are concerned, because the bill could conceivably apply to groups with land claims agreements. However, there has been no consultation that we know of, certainly not with the Nisga'a Nation, and, as far as we know, no consultation whatsoever with any member of the land claims coalition, all of the groups that have land claims agreements in respect of the application of this bill to their territories.

The committee will recall that Bill S-11 included a very objectionable provision that purported to delegate to the Governor-in-Council the authority to determine, by regulation, the extent to which regulations could abrogate or derogate from Aboriginal or treaty rights. That has been replaced by a number of what we say, with respect, are apparently unconstitutional provisions that are either self-contradictory or partially contradictory; they are certainly confused.

Those are the three paragraphs that Mr. McKay referred to already, clauses 3, 7 and 14.

Let us deal with clause 3 first, which has been described by the government as a non-derogation clause. In fact, committee members should see, upon a simple reading of it, that clause 3 is the opposite; it is a derogation clause. It provides, in summary, to paraphrase in the interests of time, that nothing in the act abrogates or derogates from Aboriginal or treaty rights except to the extent necessary to ensure the safety of drinking water. In other words, it expressly purports to derogate to the extent necessary to ensure the safety of drinking water.

This is the first time in Canadian history that there has been a clause in a statute of Parliament, or a bill before Parliament, that expressly purports to derogate, albeit in the circumstances it refers to. It is a derogation clause.

The opening words are salutary. The Nisga'a Nation's specific proposal to this committee is that the words "except to the extent necessary to ensure the safety of drinking water on First Nation lands" should be deleted.

The committee will know that the relationship between federal and provincial law and Aboriginal and treaty rights is determined by the Constitution itself. The committee should also know — I am sure you do — that any abrogation must be justified in accordance with the tests that have been established by the Supreme Court of Canada, which include whether it is for a valid legislative objective, whether it interferes with a preferred means of exercising a right, whether there has been as little infringement as possible, whether fair compensation is available and whether there has been consultation.

It simply does not lie with Parliament to enact what amounts to an undefined blanket infringement of Aboriginal and treaty rights and to replace the constitutional test of justification with a new entirely unclear test as to what is necessary to ensure safety of drinking water. What is left unsaid is how necessity will be determined. Will it be determined by the Governor-in-Council or will it have to be determined through time-consuming, costly and divisive litigation?

A government official told this committee on May 1 — we have read the transcript — that clause 3 replicates what the Supreme Court of Canada has already said. He said to you that the manner in which this clause is drafted was the result of a compromise between Canada and First Nation proponents and is designed to reflect the existing state of the law on Aboriginal rights.

With respect, my friend from the Department of Justice I think perhaps felt hurried or something, because he truncated the existing law, I say with respect, beyond all recognition when he said there is a single test of necessity.

Second, if the government really believed that, then there is no need for this clause. The only reason to have such a clause is to expressly state Parliament's will to derogate.

Clause 7 is what we call a relationship of laws clause. It says regulations under the act prevail over any laws or bylaws made by a First Nation to the extent of any conflict or inconsistency. If the First Nation is making laws pursuant to an Aboriginal right or a treaty right, then this act purports to have regulations prevail over constitutionally protected Aboriginal or treaty rights.

I say with respect it is unconstitutional and should be removed from the bill. It is specifically incompatible with provisions of the Nisga'a treaty that says whose laws prevail in what circumstances.

Finally, and from the point of view of land claims agreements groups, the most odious is subclause 14(2), which states:

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

It expressly purports to have regulations prevail over constitutionally protected treaties. It is totally inconsistent with the provisions of the Nisga'a Final Agreement Act, an act of this Parliament, and all other settlement statutes that say that the treaties prevail. The Nisga'a treaty says if there is a conflict between the Nisga'a treaty and any federal law the treaty prevails. Here is a statute that says if there is any conflict or inconsistency this act and the regulations prevail. We have warring prevailing clauses.

The statutes purport to trump each other. We say this is not an acceptable, with respect, or even a competent way to legislate.

Even more remarkable than that, Mr. Chair, it gives to groups with modern treaties less protection than the inadequate protection given to others. Others are protected by section 3, which says it only prevails to the extent necessary. I have already explained the objection to that. However, that is better than the protection given to the Nisga'a Nation and every other group with a land claims agreement, because in those cases their treaties, the law, prevails totally, whether or not the test of necessity has been met.

It is inexplicable as to why this would be added. Witnesses before you said, "Well, we do not have to force this on groups with land claims agreements and self-government agreements because there is no regulatory gap," was the word they used. They indicated it is possible that one of these groups with its own jurisdiction might like our regulations and might choose to opt in and have these regulations apply.

However, with respect and without intending any sort of a joke, that does not hold water, because any group with the jurisdiction, such as the Nisga'a, the self-government agreement or modern land claims agreement, if it liked the regulations so much it could simply enact identical regulations under its own authority. It would not have to opt into this and add its name to Schedule 1. What is the purpose of this clause?

We would say to those who say, "Do not worry, because unless you request you will not be subject to this bill," we predict that, as sure as day follows night, the other shoe will be if you want funding from the federal government for safe drinking water infrastructure you will have to opt into this legislation. That will become the condition for obtaining federal funding for safe drinking water if you have a land claims agreement.

That is not an idle fear or mere paranoia because when Bill S-11 was before this committee, you will recall that members of the government said the reason for these regulations is to protect their investment. There is no money attached to this bill. Before we invest money we need to protect the investment, and that will be done by having these regulations apply.

First Nations, such the Nisga'a Nation and other groups with land claims agreements, will, we predict, be given the invidious choice. You can have money for safe drinking water or you can have your treaty rights, but you cannot have both. We say that this is a cynical, thin edge of the wedge to establish, for the first time in Canadian parliamentary history, a legislative precedent whereby constitutionally protected rights are subject to ordinary statutes of Parliament, and the next time there is a bill with this idea we suggest that the government will point to this bill as being the legislative precedent. The next time there will not be the option to opt in or opt out.

We hope we are not overstating the case to say that the presence of section 14 in particular is an extraordinarily dangerous and odious precedent. It should be taken out. It serves no purpose, we say, other than to establish an entirely unacceptable legislative precedent.

I have gone slightly over my time. Thank you for your indulgence.

Clayton D. Leonard, Counsel, Treaty 6 and 7 of Alberta: I am here to say mostly positive, tentatively positive, but positive things.

I do want to get one small correction out of the way. I, too, have read the transcripts from May 1, most of which dealt with what Canada has characterized as consultation during 2008 and 2009. Before I get into what the Alberta First Nations have agreed on with Canada, I am under instructions to express a bit of disagreement about what was said on May 1.

To begin with the expert panel, when you look at it nationally there may have been a lot of meetings across the country. We are not concerned in Alberta with what happened across the country; we are concerned with what happened in our province. There was one meeting one day in Edmonton for 47 First Nations and all their water plant operators to make submissions about what new federal regulations on First Nations drinking water could mean. By any fair assessment, that is it not enough time.

I was present at the whole one-day session. It was asked a number of times whether the expert panel was there as part of a consultation process. They explicitly said on the record that they were arm's length from the government; they were not there to consult with First Nations. If you look at the expert panel's report, they actually note that further consultation is required. I do not think it is fair to characterize that expert panel process as consultation.

Canada also made reference to the engagement session. There were some meetings with the provincial treaty organizations in Alberta at the technical level about planning that session, where to have it, how to invite the chiefs. That is what those discussions were about. They were not about the substance of the bill. Again, there was a one-day session in Edmonton. An official from the government started that meeting with an opening comment. Most of the First Nations had attended because they had concerns about implications of the bill for treaty rights and jurisdiction, especially as those two things relates to water. The official from Canada opened the meetings by saying that we are here to talk about what might be the possible contents of the bill and maybe the regulations, but we cannot hear concerns about treaty and Aboriginal rights.

For the next three hours, the chiefs made it clear that if you are not here to talk about implications of the legislation for treaty and Aboriginal rights, then you are not consulting because that is what the duty to consult is about. When Canada continued to refuse to have those kinds of discussions or hear those concerns, the chiefs ended the session at noon of what was supposed to be a one-day session.

Canada then funded an impact analysis, which the Alberta First Nations tabled with this committee during the Bill S-11 hearings. We did a lot of work for the $25,000 provided. We looked at all of the provincial regulations in Alberta that might apply to First Nations. We went out to the communities and talked to water plant operators about the implications of that body of regulations for them. We provided that to Canada and never received a response.

During 2008 and 2009, under the former minister, from our perspective, that was the record of consultation. This was put in the record here during the last round.

Moving on to more positive points, the chiefs in assembly in Alberta in October 25, 2011, passed a resolution conditionally supporting what was to become Bill S-8. The three conditions they attached to it were, first, that the bill must have a non-derogation clause. There was still ongoing debate at the time about how it would read.

The second is that Canada must develop a satisfactory regulatory development process that closely involves First Nations. We anticipate, for the record, that that will be a three- to five-year process. After doing this initial work and looking at all of the regulations we have to look at, we really cannot conceive of anything shorter than three to five years.

The other part of that second condition is that that process must be adequately funded. It requires water experts, legal advice and a presence probably from the technical services advisory group, which is owned by the First Nations in Alberta, to assist with water plant operations. We have scheduled a call tomorrow with Canada; it is our first call to begin the discussions about the detail of that process. So far, Canada has taken at least the initial steps to living up to that commitment.

The third condition is that Canada eventually — and it is not an open-ended proposition — satisfactorily address the funding deficit for First Nation water systems identified in the national engineering assessment for Alberta. We needed $160 million in Alberta to operate our water systems at the standards enjoyed by other Canadians.

As you know, there is a non-derogation clause in the bill now. It is not perfect; it is not entirely what the Alberta chiefs expected. However, after close consideration, the chiefs have decided that it is something they can live with.

With respect to my friends here, it does not have the same implications in the numbered treaty context in our view as it does for modern land claim agreements. The outstanding issues are the second and third conditions attached to the chiefs' assembly support for the bill.

As I mentioned, tomorrow we are beginning to discuss the regulatory development process. On the third condition, I think the general impression in Alberta is that the chiefs are pleased with the announcement of $330 million in new funding for First Nation water systems, but it only takes a cursory look at the national engineering assessment to figure out that is the beginning of the solution; it is not the end of it. We need to see more money in the next two to five years from the federal government to fix the situation.

I will speak briefly — I will not name specific section numbers but in more general terms — to some of the amendments that Canada agreed to with Alberta First Nations. These amendments resulted from a process engaged during the latter part of 2010 and 2011, and January and February of 2012.

Alberta First Nations were in some pretty intensive and significant discussions with Canada. From our perspective — and I think the key people from the minister's office should share this opinion — that was not a consultation process. It was very clear from the beginning that it was to be a "without prejudice" negotiating process. That was repeated at the beginning of every meeting. It was not a consultation process.

There were reasons for that. We wanted the liberty that comes with nothing on the record; a free flow of solutions and ideas and the ability to express a bit of emotion without it being on the record.

As a result of that process, there are now assurances in the bill that it will not lead to the imposition of provincial water allocation law on First Nations. In Alberta, that is critically important. We have licences that will provide water to 20 to 30 houses per year changing hands now in the new water market in Southern Alberta for up to $15 million. We cannot afford that on top of the $160 million we need to fix our water systems. That leaves that issue for the province and First Nations to sort out.

As I mentioned, there is the non-derogation clause. There is also a commitment to develop the regulations with First Nations, backed up by a number of letters, one of which I brought from the minister. There is a significant narrowing of the scope of the regulations to specifically say that they will only deal with safe drinking water and waste water. There are several offending elements of Bill S-11 that are now removed.

Along with that, there is clarity that third-party systems on Indian reserves will not be the responsibility of First Nation chiefs and councils. That was quite a concern in Alberta. There are casinos, resorts, business parks on reserve, many of which have independently operated water systems, and there was some concern those would become the responsibility of First Nations.

There are a few issues we did not successful address, but at the end of the day, the Assembly of Treaty Chiefs in Alberta made a well-debated decision to conditionally support the bill. The key three issues that were not resolved in the way we had hoped was the opt-in and opt-out provisions that ostensibly are open to First Nations with modern treaties and self-government agreements; we do not have that option. We felt that did not necessarily create a level playing field.

First Nations do bear liability for their own drinking water systems under this bill, and that is the main reason underlying our third condition, that we eventually address adequate funding before regulations are imposed on First Nations to fix drinking water systems. We are not prepared to accept the bill and new regulatory standards until we have the finances in place to meet those obligations.

Senator Meredith: Thank you so much for your presentations.

Mr. McKay, congratulations on 12 years. I know that was pretty hard fought. I wish all the other First Nations the same success to get out from Indian Affairs and to ensure that you have your future in your hands, so to speak.

You raised this with respect to consultation. Were you aware of these one-day sessions that were happening? Did they write to you and say, "We will have these sessions and we would like to you to participate," and you thought it was unfair to have a one-day session so you chose not to? What was the situation there?

Mr. McKay: Thank you for the question. We are not aware of any attempt to notify the Nisga'a Nation that these consultations or engagement sessions, or whatever they are called, were taking place regarding the former Bill S-11 and the present Bill S-8.

Senator Meredith: Mr. McKay, walk me through how you manage your own water systems currently. What is the procedure there? Are you sharing with the province? What are your own training procedures with respect to regulators and so forth?

Mr. McKay: The Nisga'a Government has jurisdiction on Nisga'a lands, which includes the four Nisga'a villages which are the former Indian reserves. Through that process, each village government is responsible for providing, among other things, clean and safe drinking water to their communities. They are also required to uphold the standards that are set and acceptable in that situation.

Senator Meredith: Have you had to issue any boil water advisories? Given the fact that things are not up to par or adequately serviced, have you had to advise the people living on-reserve that they had to boil their water before they actually drink it?

Mr. McKay: A slight correction: As of 12 years ago, we are no longer Indian reserves. We are known as Nisga'a villages.

Senator Meredith: Thank you for that correction.

Mr. McKay: One of our Nisga'a villages, prior to the Nisga'a treaty, was already aware of some problems with their drinking water. That is the Nisga'a Village of Gitwinksihlkw. Under the Nisga'a Government in the 12 years since, under our capital programs, we were able to provide the Nisga'a Village of Gitwinksihlkw with a modern-day facility to bring their drinking water standards up considerably.

The Chair: I thought, Mr. McKay, you would say that your area is so pristine there is no such thing as bad water.

Senator Ataullahjan: Thank you for your presentation this evening.

We have heard a lot about the financial resources. I am also interested in human resources and the technical capacity in your nation. How is the situation in your nation with regard to the training and management of operators?

Mr. Leonard: Sorry, it was not clear to me to whom the question was directed.

Senator Ataullahjan: I was a looking for an answer from both Mr. McKay and Mr. Leonard. Do you want me to repeat the question?

Mr. Leonard: Sure. That would be great.

Senator Ataullahjan: We have heard a lot about the importance of financial sources, but I am also interested in human resources and technical capacity in your nations. How is the situation in your nations with regard to the training and management of operators?

Mr. Leonard: My understanding from working with TSAG in Alberta — that is the First Nations Technical Services Advisory Group; they help train and help First Nations address issues with water plant operations — is that you cannot separate the issue of funding, especially in the Alberta economy, and human resources.

When you train an operator and they move up through the various classes, they become an attractive object of recruitment for adjacent municipalities, steam-assisted gravity drainage oil sands operations need qualified water plant operators, and they pay a lot more money than what First Nations can afford.

A lot of First Nations have lost people. They have invested a lot of time and money in training to either municipal governments or private residential developments that have their own water systems, or the oil sands operations. It is a critical issue with First Nations in Alberta, and it is linked to the funding issue. If you cannot pay the guys enough, you cannot keep them around.

The Chair: Do you actually have the Circuit Rider Training Program in Alberta?

Mr. Leonard: Yes, we do.

Senator Patterson: I would like to welcome the witnesses. This is for the Nisga'a witnesses in follow-up to Senator Meredith's questions.

You said that the Nisga'a Government has jurisdiction over water and that there are standards. How are these standards set? Have you developed regulations or a legislative regime for water? Who is financing the systems that are now in place, please?

Mr. Aldridge: Thank you very much for the question, senator.

The Nisga'a Government has broad jurisdiction in respect of land and land use, not over water, per se, expressed as such. Provincial law of general application applies on Nisga'a lands by virtue of the treaty. That is the law that would govern specific standards at this time because the Nisga'a Government has not moved into that field. The Nisga'a Government does have the jurisdiction that it has not yet chosen to exercise over environmental protection, including the regulation of any discharges into any water bodies. In the absence of any such legislation, again, provincial law primarily and then, to the extent that the Fisheries Act continues to protect fish, federal law would apply.

The funding for capital infrastructure is provided by a regime established under the treaty, including the fiscal finance agreements that come into force under the treaty, and they are to be renegotiated every five years. Capital structures are paid for under that, as well as are contributed to, to the extent possible, by Nisga'a Nation funds.

Senator Patterson: I was glad Senator Meredith asked about water because I think there was one reference to water in Chairman McKay's opening comments; otherwise, the presentation was about treaty rights and Aboriginal rights.

I just want to get this clear. I know you find the act odious, objectionable and a threat, and you said the effect will be most profound, but I just want to make it crystal clear. I did note your concern that funding could be withheld from Indian Affairs, although I understand you are working out of the Indian Act and you are not a band.

My question is a simple one: Do you agree that you are not required to opt in to this legislation and regulatory regime, that you have the freedom to stay far away from this odious bill if you so choose? Would you agree with that?

Mr. Aldridge: If I may answer that question, the bill does not include any legal compulsion to opt in; you are absolutely correct.

The fear is that there will be a practical compulsion to opt in. We did not specify from Indian Affairs, senator. We still have a relationship with the federal government, and so even though the Nisga'a Nation is not subject to the Indian Act, there is nonetheless an ongoing relationship with the federal government that we fear could impose, as a condition of funding, the requirement to opt in to the act.

You are quite correct; the act does not contain any legal compulsion to opt in, so our question back to the government is the following: Why have section 14 at all? Any self-governing group has the power to adopt the regulations under its own authority, if it so chooses, so what is the purpose of section 14? We cannot think of any. That is why we propose its deletion.

The Chair: May I ask a question with regard to this? When you say "a financial requirement," are you referring strictly to your requesting money for a water system, or do you feel the way this act is worded that any request for funding, as a result of your relationship with the Crown, could require or allow the utilization of the clause 14 in the act?

Mr. Aldridge: It is the former. We do not know how the funding will be provided, whether it will be through the Department of Indian Affairs and Northern Development, as it is still legally known, or through Public Works Canada. The concern is that a request in respect of safe drinking water, presumably infrastructure, but perhaps training, things of that sort, any program that is established, will be contingent upon opting in, regardless of which particular department of Canada was administering it — but not money at large — would be made conditional upon opting in.

Senator Patterson: I say this with some hesitation. I know it is very important, and I do not mean to write it off at all. Putting aside, for the moment, your concerns about section 35, the Constitution Act and the derogation or non- derogation clauses, as we choose to describe, I am having trouble understanding it. We are dealing with something as basic as safe drinking water — clean water. Can you describe a situation where regulations made under an act that basically proposes to set up water systems that are safe, so that we do not have Walkertons on reserves or self- governing nations, could relate to or threaten Aboriginal rights? In the preamble, the act does pledge to involve First Nations in the development of those regulations, as you know. Forgive me; I cannot imagine a situation where Aboriginal rights would conflict with regulations to set standards and provide safe drinking water, how the two could threaten one another or be a threat. We are talking about the subject of safe drinking water, not language, not hunting rights, not the many rights that Aboriginal people need to be concerned about. We are talking about clean water. How is there a threat from regulations to treaty or Aboriginal rights?

Mr. Aldridge: The threat is to the treaty right of self-government, the ability to make laws in respect of the use of land, the location of the use of land and the control over the use of land.

Senator, the bill, as you know, contemplates not simply the virtue of safe drinking water. Who could be opposed to that? It is certainly not the Nisga'a. What the bill would enable the Governor-in-Council to do, among other things, is to pass regulations that, for a couple of examples, do the following: 5(1)(b) confer on any person or body any legislative, administrative, judicial or other power that the Governor-in-Council considers necessary to regulate water systems; (c) confer on any person or body the power exercisable in specific circumstances to make orders to cease any work, comply or to remedy the consequences. They could by regulation under (h) confer on any person the power to verify compliance with the regulation, including the power to seize and detain; (i) refers to getting warrants; (j) is auditing books; (n) obligations of any person exercising powers and penalties for the breach of those obligations.

That is an intrusion into the heart of the law-making authority that the Nisga'a Nation has over the use, management and zoning of its land. The government says by regulation it can confer the power on any person to trump the treaty right of self-government that is thereby engaged. Because of the total commitment to the same values that you refer to in terms of clean drinking water — because no one is opposed to that — the Nisga'a Nation has the choice now to rely on provincial legislation, as augmented by its own, or, if there actually emerged from this process something that was salutary, they could enact it themselves.

One small correction: the government appeared before you on Bill S-11 and said repeatedly — we have read the transcripts — that the intention was to consult with First Nations on the drafting of the regulations. That now has been inserted, not as a substantive obligation, but rather as a preambular clause that has no legal force and effect, other than to help with the interpretation of the act. Rather than use the word "consult," which they promised you they were going to do on Bill S-11, they have instead chosen the vague word that they will "work with" someone or another, First Nations, in the development of their regulations. They obviously chose the phrase "work with" instead of "consult" for a reason. I am not sure what it is, but it is obviously vaguer. We do not know with whom. I simply remind you that they have come to this committee to say, "We have consulted with First Nations," but they also say that really it was Alberta and the Atlantic Congress. They were the ones on May 1 who told you, when you chaired the meeting, that they had most of their consultations with them. They certainly had none with the Nisga'a Nation. I just wish to make those points. It goes to the heart of the relationship of who gets to control the land.

Mr. Leonard: When the Alberta chiefs' water committee, which reported to the whole assembly, looked at this issue, they felt it fell into two categories: the practical and the principled. On the practical level — and some of it is set out in the letter I provided the committee from the minister and in repeated verbal commitments as well — Canada has said we will be partners in the development of the regulations, partners in the implementation of the regulations, and that the new regulatory authority will, in some fashion, be determined, jointly operated by Alberta First Nations and the federal government.

There is a new level of respect that we did not see under Bill S-11 — at least from our discussions with Canada — for the legitimate role of First Nations in governing the safety of drinking water in our communities.

On a principled level, I have to agree with my colleague Jim Aldridge. I think Canada's interpretation of what is a permissible infringement on May 1 was sweepingly broad. As far as I understand, there are three or four justifiable reasons for infringing Aboriginal or treaty rights. One clearly in the case law is safety. That is because the clause narrowed the exception to the safety of drinking water. At the end of the day, that was one of the reasons the Alberta chiefs were able to live with the clause.

Going forward, when we develop and implement regulations, in our view, the case law is pretty clear since Sparrow that even though we are talking about one narrow exception, the evidentiary burden lays with the Crown, even under this narrow exception, to demonstrate that if we have to infringe a treaty or Aboriginal right for the safety of drinking water, they have to show us hard, cold facts why that is necessary. In my personal view, it carves out a narrow exception.

In the context of Aboriginal rights, it may be a bit different. There is a lot of unsettled territory there from a legal perspective.

Senator Campbell: Thank you very much for coming today.

I find it quite incredible that when we are talking about a legal document — and legal documents are precise — we actually hear mealy-mouth words that are not like "consult" but "work with." "Work with" has no legal status, has no understanding in legalese; whereas "consulting" has a definitive definition.

The interesting thing about this bill is that it takes in the whole gambit. It takes in self-governing First Nations. It takes in nations that already have treaties. It takes in nations that have no treaties but may be in the process. It takes in nations that are not even in the process and it treats them all the same. If there is one thing that we supposedly learned from the treaty process, it is that no one is the same and that everyone is a separate nation. I have some difficulty with that.

If clause 14 were taken out, would this bill then be acceptable? This is the prevail section, right?

Mr. Aldridge: From the Nisga'a point of view, senator, in order to make the bill not apply to the Nisga'a Nation, ever, at all, then we would have to amend the definition of "First Nation," the definition of "First Nation lands" and the definition of "Aboriginal body." You would then remove section 14 in its entirety and there would be no need for a reference to a schedule. To put it a different way, you would restrict the application of the bill to Indian bands under the Indian Act or under the First Nations Land Management Act.

Senator Campbell: These would not be in a treaty situation?

Mr. Aldridge: They would not be modern treaties. They would include historical treaties. If that were removed, from the Nisga'a Nation point of view, because it would have no application to the Nisga'a Nation; they would have nothing further to say about the other contents.

From the principled point of view, we still have a concern about including, as my friend says, what we perceive clause 3 to be, namely, a derogation clause. The Alberta chiefs agreed to it. That is their prerogative; we do not want to get in their way. However, from our point of view, on a principled basis, there should not be a legislative precedent of derogation clauses.

Senator Campbell: This actually would affect, as of right now, three modern treaties in British Columbia, right?

Mr. Aldridge: Back to my answer to Senator Patterson, only if Nisga'a, Maa-nulth or Tsawwassen would chose to opt in. Why would they? Only in the circumstances I described, but I agree that there is no legal compulsion to apply to those groups.

Senator Campbell: The fear that you express by not opting in this down the road is a fear that we have to address with every single bill. On every single bill that deals with First Nations and Aboriginal people, almost without exception, the big fear is always: Is this a step down a road that we do not want to go? I have heard it numerous times over my seven years here. It is not that the fear is not realistic; it is that it is out there. Is that correct? The fear is realistic; I am saying that. However, that goes for every bill. We have people come here and say, "We are not really against the bill, but we are worried about what could happen down the road." Am I missing this?

Mr. Aldridge: If that is what you have perceived, I apologize for making the point badly. The concern we have is that a clause that is totally unnecessary, that has no virtue and that does not do anything that needs to be done, is put in as a thin edge of the wedge to contemplate amending constitutionally protected rights by ordinary legislation. That is more than just the fear that we have expressed about being coerced to opt in financially.

I will put it like this to all the senators on the committee. Imagine a clause that went into a bill, which you were confronted with as parliamentarians, said that nothing in this bill abrogates or derogates from equality rights except to the extent necessary to achieve — and then some goal was stated. For example, nothing in this bill abrogates or derogates from freedom of speech except to the extent necessary to achieve — and then state a laudable goal. That is the fair comparison. Or if a province, with its constitutional relationship with Canada, saw a federal bill that said the Terms of Union between British Columbia and the Government of Canada, if there is any consistency between this act and the Terms of Union of British Columbia, this act prevails. British Columbians would not like it very much.

Senator Campbell: My final question, in short, is the following: What standards does the Nisga'a Nation now use for drinking water?

Mr. Aldridge: Provincial.

Senator Campbell: Provincial standards. Does the nation operate it?

Mr. McKay: Yes. The maintenance department in each village government is responsible for overseeing that.

Senator Campbell: They are trained.

Mr. McKay: Yes, they are.

Senator Campbell: Have you ever had any problems?

Mr. McKay: No, we have not.

The Chair: I have one question for Jim Aldridge. What are the chances, with the modern-day treaties, of having to go to the government, to the Crown, for financial assistance that would subject them to clause 14? Is it slim, none and otherwise, or are you just being overly cautious?

Mr. Aldridge: Part of my job, Mr. Chair, is to be cautious, I hope never overly so. All the funding for programs, services and capital infrastructure is provided under fiscal agreements entered into with the federal and provincial governments every five years. Funding for everything, including drinking water infrastructure, would come under the fiscal financing arrangement, augmented, of course, by Nisga'a's own funds. However, until the day we are entirely self-sufficient, there will always be the need to apply for programs or financial assistance, be it under the fiscal agreements or under some other program that is set up. We do not know what the government will set up in terms of funding these. That is the concern.

Are the Nisga'a self-sufficient enough to pay for all of their drinking water infrastructure? No, of course not. A combination of federal and provincial funding will no doubt be needed. I think it is a reality that federal and provincial money will be needed. It is a concern that the kind of condition we have expressed the fear about will be imposed. I do not think that is being overly concerned; I think it is being realistic.

Senator Lang: I would like to follow up on Senator Campbell's questions with respect to how your communities are run.

The bill is pretty clear. It outlines exactly what is expected of a water system, how one runs it, and that if things go wrong, certain steps will be taken. It is not unlike any other water system throughout the country, whether it be by municipal law or provincial law, that prevails in the particular area of the country.

I would like to go back to the situation that you presently have, where you are in charge of your own water systems. Looking at the bill in terms of the way it outlines how the system is to be run and the responsibilities, do you have that as your bylaw, or what bylaws are you under from the point of view of running the water system, in view of the fact that you use the provincial standards? However, you obviously adopt them as a government and then have bylaws of how it will operate; is that correct? Perhaps you could clarify.

Mr. Aldridge: No. With respect, senator, the provincial laws apply of their own force, by virtue of the treaty, so there is no need for an additional bylaw to make the provincial laws apply. The Nisga'a can enact laws in respect of land use and so on, and there is an interaction between Nisga'a and provincial legislative authority, but there is no need for the Nisga'a to incorporate by reference the provincial laws. If they do nothing, the provincial laws apply.

The other comment I would have to make, senator, is that, with respect, the bill does not in fact establish the rules for running a water system. What it does is it gives to the Governor-in-Council the ability to enact regulations that would set those things out, under these heads.

Part of the problem — again, back to Senator Campbell's comments — is that every time you are faced with a bill that contains sweeping regulatory authority, you never know what the regulations will say at the time you are contemplating the bill. We do not know. They might be good; they might be bad. They will work with people. That is fine. If it does not apply to the Nisga'a Nation, no further discussion would be needed with the Nisga'a Nation.

Senator Lang: I would just like to pursue the present situation that you operate your systems under. Provincial law prevails. You have your own employees, so they are under the provincial laws and have to follow the laws, similar to the regulations that, I assume, would come out of a piece of legislation like this for a water system.

Mr. Aldridge: They would be generically similar, one would assume. However, the difference is that we can displace those provincial laws in respect of particular uses. Would the Nisga'a Nation ever do so if it was going to endanger safe drinking water? Of course not.

Senator Lang: This is where I agree with Senator Patterson. A water system is a water system; clean water is clean water; dirty water is dirty water; and certain things have to be done in order to maintain a good water system. This, to me, is not rocket science. We are fortunate to live in the time we live in now in that we have that expertise and can acquire that expertise.

I would like to ask a question of Mr. Leonard, if I could. This concerned me as a taxpayer, and for any of the taxpayers out there watching this: A significant contribution has been made for the water and sewer systems over the last few years, in the neighbourhood of $1.7 billion across the country. Obviously, Canadians across this country are concerned that they have equal access to clean drinking water and good waste systems.

In your outline, one of the concerns or caveats you had in respect of the legislation was that you had to know what the financial commitment by Canada would be for the long term, not just the short term, if I understood you correctly. One of the areas you said you needed money for was legal. Perhaps you could clarify for us and for the viewers: Why would we need money for water and sewer systems, and then legal costs?

Mr. Leonard: I am pretty confident in this statement: Canada will have a small battery of lawyers assisting them with the development of these regulations. First Nations will have to live with those regulations. They will need the same kind of legal advice. The Alberta First Nations, for the last four years, have used their own resources to reach this tentative agreement with Canada on this bill. Looking at the work we have done so far on the vast body of regulations that need to be looked at, one by one, and considered for incorporation by reference, the Chiefs and Assembly in Alberta have said we need a budget for water expertise and legal advice.

The other concern on the financial front is there is this statement that has been made here that a water system is a water system. If you have spent any time with water plant operators in First Nation communities, you will know how false that statement is. I work with a plant operator at the Samson Cree Nation on day-to-day, practical water issues. If I drive 10 minutes up the road to Wetaskiwin, that water plant is adequately funded, has a budget for the operation and maintenance it needs every year, and no one's drinking water is in danger in the community. A First Nation community the same size has never, historically, since the signing of the treaty in 1876, had a budget commensurate with non-adjacent, non-native communities.

When you talk about $2 billion, you are talking about addressing a century of neglect for over 600 communities from coast to coast. It is great that the federal government has finally put money into this, and they deserve some applause for that. However, when it comes to safe drinking water, half of what is needed is not enough; enough is enough.

Senator Lang: Mr. Chair, no one will argue that. The concern expressed in some quarters is that monies are made available. For example, we talk about legal fees. All of a sudden now we have spent half a million dollars on legal fees and we still have a water system that perhaps is not working the way it should. That has to be a cause of concern as well, because there is only so much financial capability that the taxpayer can provide. The other side of the coin — and that is what I was asking you on the legal side — how much did you spend up to now on legal, for where you are now?

Mr. Leonard: I do have to respect solicitor-client privilege, and I am not hiding behind that. However, I can tell you that if you take a moment to read this impact analysis, which is a thorough piece of work, it was done for $25,000. That is far less than the actual value that went into this from a legal perspective.

What will it take to develop the body of regulations we need in Alberta? You are looking at 500 or 600 pages of regulations that have to be written from the ground up. I cannot provide a cost estimate on that off the top of my head, but it will be a significant budget. You do not need just legal advice; you need competent people from the First Nations Technical Services Advisory Group, hydrologists, water quality people and plant operators at the table. That all takes money to engage in that type of process.

Senator Patterson: Supplementary to Senator Lang's question, it is possible, is it not, Mr. Leonard, that there are existing regulations in place that are working? You spoke about Wetaskiwin as being a safe system down the road from Sampson Creek First Nation. Is it not possible that the Treaty 6 and 7 First Nations could at least look at the provincial regime before deciding that they need to spend I think you said five years, which dismayed me, developing from scratch a brand new set of regulations? It seems to be working, as you said, 10 minutes down the road.

Mr. Leonard: I will give you an example of the fit problem here. Most Alberta First Nations rely heavily on groundwater use, but off reserve you have this body of regulations that has been developed under the Water Resource Act and its predecessor the Water Act since 1930. You have a 70-year plus head start. That system is developed to govern the family living on the ranch, the farm, the acreage, with their own private water well on fee simple land. You cannot just take that cookie cutter and apply it to community-owned land under a treaty and several hundred water wells on some of the larger First Nations in Alberta, all owned and operated by the First Nation, not by the individual landowner. There is designated land under which non-native people are living on reserve and operating their own water well systems.

The on-the-ground reality of land ownership — who owns the wells and is responsible for them — is fundamentally different from what exists off reserve. That is one of the issues identified in this impact analysis. This is one of the key areas of regulation that needs to be addressed. You cannot take that and just apply the provincial regulations. It does not fit.

The other problem is that Alberta's provincial regulations for private water wells are really guidelines. If you want to drink dirty, risky water from your water well, you go right ahead, but that does not work for 500 communally owned wells. That is one important example of why it will take a lot of work.

If we want to get this right and not just apply something that does not fit, a lot of work will be required — not just by lawyers but by First Nation political leaders, water plant operators who know what is going on in their community with drinking water and some good advice from water experts as well.

Senator Meredith: Mr. McKay, one of the things that always comes up by folks appearing before us is, "We do not have any money; show us the money." It is always centred around money in terms of sustaining the infrastructure and ensuring that your plants are kept up. What are you doing economically to create that future investment into your village to ensure that, should the government say, "Well, you did not opt in to this legislation," you can then say, "Thank you, government, we can go it on our own." Are you doing anything long-term to ensure you are sustained financially?

Mr. McKay: Thank you for that question. The premise of the Nisga'a treaty was to make the Nisga'a nation independent at some point in the future. Let us remember where we came from: 130 plus years of living under the Indian Act has done a lot of damage to our communities. Furthermore, 12 years into the Nisga'a treaty implementation, we do not have to look very far in any of our Nisga'a villages to see the remnants of the Indian Act. They are still there.

I take your point with respect to the economic potential. We are often asked, "Why is there not an economic development chapter in the Nisga'a treaty?" That is because if you look throughout the treaty, you will find opportunities for the creation of wealth.

We are coming from a command economy under the Indian Act. What we aspire to is a market economy, but you cannot just go over there and flip the switch and it takes care of itself. With the Nisga'a final agreement, we were cautioned through the infinite wisdom of our elders, our hereditary chiefs and matriarchs 12 years ago. The Nisga'a final agreement is not the silver bullet. The Nisga'a final agreement is not a book of guarantees. The Nisga'a final agreement is a book of opportunities.

All we are saying as the Nisga'a nation is that if we are given the opportunity to maximize that potential, we are confident, senator, that at some point in the near future we will be independent and we will not be coming out with hat in hand every time we meet a challenge.

This process of re-empowerment is at the very heart of why the Nisga'a Nation compromised a great deal. I maintain that no one of the three parties compromised more than the Nisga'a Nation to make the Nisga'a Final Agreement happen, but we did so because we had a lot of hope for that potential. We have yet to realize that potential. That is all we are asking for.

Senator Meredith: Mr. Aldridge, from your legal perspective, you raised the possibilities of what could happen. I want to play the devil's advocate with you in terms of whether this is coming out as here is an opportunity that the government is imposing on us, and we need to be careful. You then talk about the value that everyone should have safe drinking water. That is what this legislation is trying to do, namely, elevate and raise the standard right across this country to ensure that young people are getting the proper drinking water and that mothers and families are getting the proper drinking water that they need. My colleague Senator Patterson mentioned the Walkertons of the world.

I want to get into your mind. Why would you want to raise this issue of the fear of the government, given the fact that we already spent $2 billion on this to ensure that plants are brought up to speed? We have given guarantees by the government. We will not bring you this far and leave you, because then you create a further crisis. The government has come to us and said, "We will continue to ensure that there are monies going forward here under the regulations to ensure that plants are kept and water supervisors are trained." Again, within the bands and your villages, Mr. McKay, how do you keep them? How do you ensure they stay once they are trained to ensure that the standards are kept? I want to get into your head about the fear that you are raising.

Mr. Aldridge: I have been in this line of work for 32 years and have seen how not just this government but the federal government has conducted itself in respect of Aboriginal people over the course of those 32 years, and I have developed an expertise in history before that.

It is because often that is the way the system works — not bad faith, not mala fides, not conspiracies, but because someone gets a good idea to pursue a certain value, and an important value. However, other concerns can get swept to the side because they were lost track of. Maybe, if I can use the phrase, they were not given a bit of sober second thought.

Senator Meredith: That is what we are doing right now.

Mr. Aldridge: That is why we are here. In respect of the application of this bill to the Indian Act bands, we are saying that this is between them and the Government of Canada. With respect to the broad non-derogation clause, it is inappropriate to establish a legislative precedent — for the first time in 22 years since section 35 came into force, the Charter came into force — to establish the legislative precedent about derogating constitutionally protected rights and to do it in a bill about something as fundamental as safe drinking water. It would be the same if, as I mentioned before, they abrogated equality rights or freedom of association or any of the other constitutional rights that we hold so dear. We express caution. Have some second thought about that.

As far as clause 14 and the associated provisions are concerned, we say, at the risk of repetition, we will not be afraid at all if you just take them out.

Senator Meredith: Have you written that to the minister and have you received a response?

Mr. Aldridge: We have not been able to communicate with the minister yet. We continue to try.

Senator Meredith: Put it in writing, I would submit to you.

Mr. Aldridge: May we send you a copy?

Senator Meredith: Absolutely.

Senator Patterson: To follow up on that, I think we understand that this bill was primarily targeted at reserves. That may partly be why the consultation was not done. I understand you respect the reserves have a different viewpoint.

However, from the Nisga'a point of view — and I would like to ask the same of Mr. Leonard — you said take out clause 14. Did I understand take it out completely?

Mr. Aldridge: Yes, and the associated provisions.

Senator Patterson: You mentioned clauses 3, 7 and 14. Otherwise is the bill okay?

Mr. Aldridge: Let me answer it like this: Take out section 14 and the associated provisions, Aboriginal body schedule 1, et cetera, then it does not apply to the Nisga'a Nation anymore and could not. We would remove ourselves from the discussion, except that there is a broader legislative precedent in putting in a derogation clause, clause 3. Even though it would not directly affect the Nisga'a, we think there is a concern about establishing a precedent on the back of safe drinking water that we will see in the future.

Once we are out of the bill, clause 7 would not affect the Nisga'a Nation anyway. Do we say it is fine? We say you could find some problems with groups with an inherent right of self-government or treaty right of self-government. You might run into that, but it would not be us. They can speak for themselves.

The synopsis is to take out clause 14 in the associated provisions that make it apply to lands claims agreement groups. That is the letter that Senator Meredith and I spoke about.

Senator Meredith: Recommendations, yes.

Mr. Aldridge: With respect to clause 3, turn it into a non-derogation clause instead of a derogation clause by deleting the words "except to the extent necessary to ensure the safety of drinking water." The government says that is the law anyway, so you do not need it.

Then clause 7 is not our problem, but I think it will provoke litigation from other groups in the country, but I am not here to represent them. I hope that is clear.

The Chair: Are you clear, Senator Patterson?

Senator Patterson: Yes. Thank you for that clarification.

If I may, I think Mr. Leonard said that clause 3, although perhaps not perfect, if I understood you correctly, that Treaty 6 and 7 chiefs could live with that.

I know you are very clear about the financial issues. The Senate is not allowed to entertain money bills, so that is probably for the other place. However, we will have the minister here and he will be asked those questions for sure before we finish our deliberations. Other than the money issue, which does not fall within the bill, is the bill okay as is?

Mr. Leonard: You have the resolution of the chiefs' assembly in front of you. It is not a resounding endorsement of the bill; it is conditional support. It is not perfect; there are things that could be done better. However, I think the general view of the chiefs assembly in Alberta is that the real devil will lay in the detail of the regulations. The bill is in a state that they can deal with, subject to adequate funding being in place by the time the regulatory development is done, and that that regulatory development process be much more satisfactory than what got us here.

Senator Patterson: So we should go ahead with the bill?

Mr. Leonard: That is what the letter from the chiefs assembly and the resolution conditionally say.

Senator Patterson: Thank you.

The Chair: I want to thank the panel. As usual, my friends from my province put forward their position clearly, and so did the man from Alberta.

I want to thank you all for your presentations and for the straightforward, candid responses to the questions posed by senators.

Senators, I thank you for your cooperation. Have a good evening.

(The committee adjourned.)

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