Proceedings of the Standing Senate Committee on
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Mr. Leonard: Sorry, it was not clear to me to whom the question
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
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
The Chair: Do you actually have the Circuit Rider Training Program
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.)