Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 20 - Sixth Report of the Committee

Thursday, June 7, 2012

The Standing Senate Committee on Aboriginal Peoples has the honour to present its

SIXTH REPORT

Your committee, to which was referred Bill S-8, An Act respecting the safety of drinking water on First Nation lands, has, in obedience to the order of reference of Wednesday, April 25, 2012, examined the said Bill and now reports the same without amendment but with observations, which are appended to this report.

Respectfully submitted,

GERRY ST. GERMAIN

Chair

OBSERVATIONS

to the Sixth Report of the Standing Senate Committee on Aboriginal Peoples

Access to clean and safe water is fundamental to the quality of life of First Nations people, as it is to all Canadians. While investments and efforts over time have resulted in improvements to water conditions in First Nation communities, much more remains to be done. It is clear that a federal regulatory regime is required to establish transparent and enforceable water standards on First Nation lands. It is equally clear that the federal government and First Nations need to work together in the development of such water standards.

Closing the legislative gap is, however, only part of the solution to the problems surrounding water quality on-reserve. Your Committee is concerned that the text of the bill may not, on its face, adequately address the needs of First Nations to build capacity to develop and administer appropriate laws for the regulation of water and wastewater systems on First Nation lands.

The Committee welcomes the inclusion of a clause in the bill which addresses the relationship between the legislation and Aboriginal and treaty rights under section 35 of the Constitution Act, 1982. However, the Committee is concerned that this clause still expressly allows for the abrogation or derogation of Aboriginal and treaty rights in some circumstances. Such a clause should only be invoked rarely and not extend beyond what is legally justifiable in any given circumstance.

The Committee notes the statement in the Preamble to Bill S-8 articulating the government's commitment to work with First Nations in the development of proposals for regulations under the legislation. The Committee strongly urges the federal government to meaningfully consult with First Nations, and provide necessary resources to ensure First Nations' participation, in the development of regulations under the legislation. The development of regulations should and must be a joint process involving both the federal government and First Nations.

In his testimony, the Minister told the Committee that the resources required to implement the regulations will be in place when the regulations become legally binding. This statement is welcomed by your Committee. We further urge Aboriginal Affairs and Northern Development Canada to immediately target sufficient financial resources to close the capacity gap for First Nations, in terms of both infrastructure and training, in the regulation of water and wastewater systems on First Nation lands.

The Committee heard concerns, expressed by representatives of self-governing First Nations, that future programs and funding associated with water treatment and protection may depend on their agreement to be brought under the purview of this legislation. Your Committee is sensitive to such concerns and maintains that such a circumstance would constitute a problematic interference with the self-governing powers of First Nations under treaty.

Many First Nations and the Expert Panel on Safe Drinking Water for First Nations, established by the Minister of Indian Affairs and Northern Development in 2006, have recommended the creation of national or regional First Nations-led water authorities, to provide regulatory oversight and to facilitate negotiations and discussions among Canada, the provinces and First Nations. Bill S-8 should not preclude Canada from exploring this option with interested First Nations and their organizations, and in particular those who have made concerted efforts toward the development of such entities.