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Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 19 - Evidence - May 29, 2012

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OTTAWA, Tuesday, May 29, 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 8:30 a.m. to give consideration to the bill.

Senator Lillian Eva Dyck (Deputy Chair) in the chair.

[English]

The Deputy Chair: Good morning. 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 on CPAC or the Web.

My name is Lillian Dyck. I am from Saskatchewan and I am the deputy chair of this committee. In the absence of our chair, Senator St. Germain, I will be presiding.

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 First Nations. Federally, three departments are primarily responsible for delivering safe drinking water on-reserve: the Department of Aboriginal 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 morning, we will hear witnesses from Aboriginal Affairs and Northern Development Canada, the Department of Justice Canada and Health Canada. These witnesses will be followed by representation from Treaty 7 from Alberta.

However, prior to hearing from our witnesses, I would like to introduce the members of the committee present this morning at this time. I will have the committee members introduce themselves and say where they are from.

Senator Patterson: Dennis Patterson, senator from Nunavut.

[Translation]

Senator Brazeau: Patrick Brazeau from Quebec.

Senator Dagenais: Jean-Guy Dagenais from Quebec.

[English]

Senator Raine: I am Nancy Greene Raine from British Columbia.

The Deputy Chair: Thank you very much. Members of the committee, please help me in welcoming the Honourable John Duncan, P.C., M.P., Minister of Aboriginal Affairs and Northern Development. He is joined by officials from his department: Gail Mitchell, Director General, Community Infrastructure Branch, and Karl Carisse, Senior Director, Innovation and Major Policy Transformation, Community Infrastructure Branch. We also have Kym Purchase, former director of parliamentary affairs and Deputy Chief of Staff to the minister.

Accompanying these witnesses is Paul Salembier, General Counsel, Operations and Programs from the Department of Justice Canada, and from Health Canada Ivy Chan, Director, Environmental Public Health Division, Primary Health Care and Public Health, First Nations and Inuit Health Branch.

Witnesses, we look forward to your testimony, which will be followed by questions from senators. Minister, you may take the floor.

Hon. John Duncan, P.C., M.P., Minister of Aboriginal Affairs and Northern Development: Thank you very much, Madam Chair. This is a great opportunity to contribute to the Standing Senate Committee on Aboriginal Peoples' review of Bill S-8, Safe Drinking Water for First Nations.

As you know, the committee's work on the previous version of the proposed legislation directly informed Bill S-8. Extensive discussions with First Nation organizations, particularly the Assembly of Treaty Chiefs of Alberta and the Atlantic Policy Congress also led to changes of the previous version of this bill.

I would like to comment that Grand Chief Weaselhead from Treaty 7 First Nations Chiefs Association, from whom you will be hearing later this morning, was instrumental in the collaboration of his treaty group and leadership with Treaties 6, 7 and 8 in Alberta. That collaboration is what has led to the success that we have achieved to this date.

Bill S-8 is a crucial component of a larger action plan that the government began implementing six years ago. The plan aims to ensure that residents of all First Nation communities can access safe, clean and reliable drinking water. Since then, we have made great progress toward this goal.

Accountability for results matters. This is true for every community in Canada, Aboriginal and non-Aboriginal. Legislation establishes a chain of accountability; it clearly spells out who is responsible for the many aspects of safeguarding drinking water, such as source protection, quality testing and treatment and distribution protocols. A framework also establishes appropriate enforcement mechanisms in case of failures in the water management process.

There is no doubt that appropriate legislation is a crucial factor in ensuring that residents of First Nation communities have access to safe, clean, reliable drinking water. The Auditor General's report of 2011 identified structural impediments to progress in improving quality of life on reserve, impediments such as the lack of a legislative framework that would assure clean drinking water in First Nation communities. Every authoritative group to study the matter, including this committee and most of the witnesses that appeared before you, have reached the same conclusion.

Bill S-8 proposes to establish a collaborative process that would, on a regional basis, create a sound regulatory regime. As explicitly stated in this bill, our government will work with First Nations to develop regulations that would be implemented over a number of years. These regulations would establish standards comparable to those that safeguard drinking water elsewhere in Canada. These regulations would come into force once communities have the capacity to adhere to them. Many witnesses heard by this committee over the last few weeks expressed their eagerness to work with the government to develop these regulations.

I will just go over a bit of the history. The predecessor bill, Bill S-11, was introduced by my predecessor, Minister Strahl. In October of 2010, as minister, I met with representatives from Alberta First Nations along with their legal counsel in my office. They expressed significant concern with the bill and their intention to vigorously oppose it. I expressed our government's commitment to safe drinking water for First Nations, including through legally binding standards, and asked them to work with us to address the concerns and strengthen the bill. They seemed genuinely surprised at the proposed approach but agreed to work with us.

From October 2010 through February 2012, about a year and a half, without-prejudice negotiations took place with representatives from the Assembly of Treaty Chiefs of Alberta, the Atlantic Policy Congress, the Assembly of First Nations nationally and Quebec and Labrador. I have personally met with chiefs at several key crossroads in the negotiations to maintain forward momentum. There was also a meeting of chiefs from across the country in August of 2011. It was an opportunity to give feedback to the larger group about the progress being made in the without-
prejudice negotiations and to reaffirm our commitment to reintroduce. While Bill S-11 died on the Order Paper when Parliament dissolved in the spring of 2011, we did not reintroduce the bill as Bill S-8, the bill we are discussing today, until February of this year. That was because progress was being made to address First Nation concerns, and we were committed to ensuring that the very best bill would be introduced.

The direction I gave to my staff and the department team engaged in the negotiations was premised on establishing and maintaining a respectful and credible relationship. The First Nations who helped amend Bill S-11 into what is now Bill S-8 before us should be commended for their commitment and leadership.

As parties to this legislation, we made some commitments together, which include to work together on amending the bill. This has been fulfilled as demonstrated by the introduction with the Assembly of Treaty Chiefs Grand Chief and the public endorsement by the Atlantic Policy Congress. We agreed to work together on the regulations that this bill will enable. Some work has already begun in this respect, and there is now a commitment in the bill itself to do so.

We agreed to work together and ensure that the resources required to implement the regulations will be in place when the requirements become legally binding. I made that commitment in my previous appearance before this committee, and I am pleased to note that parallel work with regard to capital planning has been under way with First Nations water technical experts and my officials since last November.

I can describe some of the broad changes that have been implemented in Bill S-8. Several are directly related to clarifying and limiting the scope of the bill only to the purpose of the bill, that being safe drinking water and protection of source water.

We clarified how this bill and its framework could apply to self-governing First Nations if they choose to adopt it rather than those provisions under their existing self-government agreements. We balanced health and safety protections for drinking water in full accordance with section 35 rights and Supreme Court decisions. This is the non-
derogation clause. This provision took a significant amount of discussion. Given that courts interpret the law as written, Canada needed to ensure that a non-derogation formulation would not leave open the possibility for parts of the bill and the eventual regulations to be rendered inactive. First Nations needed to see that Canada was fully committed to respecting their rights. All agreed that safe drinking water was supported by all and that the Supreme Court has already ruled that section 35 rights could be infringed for health and safety reasons. This enabled the compromise formulation that is found in Bill S-8. All interests are served, particularly the residents of First Nations communities.

In conclusion, Madam Chair, this bill has achieved something quite dramatic. It went from a position of almost unanimous opposition to one that was amended in negotiation with First Nations. This process exemplifies how we can work with First Nations. It was a set of negotiations that was pragmatic, tangible and respectful, and the process as much as the result is something we can all be proud of.

That concludes my remarks. I neglected to say that I am on a pretty tight time frame this morning, unfortunately, but I am happy I was able to be here and take a couple of questions.

The Deputy Chair: Thank you very much, Minister Duncan. We appreciate the fact that you made time to come. What time do you have to leave?

Mr. Duncan: I was told 8:50, which is not that far away.

The Deputy Chair: In that case, we better get to questions. Two other senators have joined us, Senator Ataullahjan from Ontario and Senator Campbell from B.C.

Given your short time frame, I, as chair and as critic of the bill, would like to take one or two questions to make sure they get asked.

You were saying that there have been dramatic changes, and you described two that we heard from witnesses are quite important, namely the amendment regarding the non-derogation clause and the other regarding consultation. You mentioned that you have committed to that at this committee, and I believe you also committed to that in a letter to the Alberta chiefs.

I guess the question would be, with regard to the other First Nations who were worried and have not been in such close consultation with you, is there no other mechanism whereby you can put something in writing to them? Why is something like this not put into the bill? I believe the other First Nation witnesses still expressed a high level of concern regarding the regulations with respect to the consultation process. In the preamble, you say you will work with them, and I believe that they think that is not strong enough. Are you averse to amending that clause to say that you will '
'
consult with and accommodate"
 to make it stronger?

Mr. Duncan: I am glad you asked that question, Madam Chair. Those words were chosen because duty to consult is very clear. It is a binding legal obligation that we have. When we say '
'
work with"
 and make that commitment in the bill, we are actually going beyond consultation. I read it completely the opposite of the way you posed the question. This is a commitment that is above and beyond consultation.

I would also like to say that during the process of developing Bill S-8 we met with hundreds of people from across the country from the First Nations community. We canvassed. Our door was always open, and we invited people to participate in the process. We are continuing to do that. We are working on the regulations and on the capital planning and commitments. We have been doing that and will continue to do that. This will be a very lengthy process to develop regulations because they will vary across the country.

The Deputy Chair: Just to recap, you said that you thought the phrase '
'
work with"
 was more powerful than the legal phrase '
'
consult."
 

Mr. Duncan: Yes.

The Deputy Chair: Is there any way of adding something to the preamble that makes clear that this is actually beyond what '
'
consult with"
 means? I think our witnesses had a different interpretation of the words '
'
work with."
 Of course, the English language is — and probably all languages are — open to interpretation. I think there was concern about what '
'
work with"
 meant. For example, in some bills, including this one, there is a section of definitions. Could there be a definition of what '
'
work with"
 means?

Mr. Duncan: I could ask either one of you to respond.

Paul Salembier, General Counsel, Operations and Programs, Department of Justice Canada: Perhaps I can offer some comments on '
'
consult."
 You have mentioned that some of the witnesses had a different view of what '
'
work with"
 meant and what '
'
consult"
 meant. Part of the problem is that the Supreme Court of Canada has dealt with a duty to consult, but they have identified a complete spectrum of what '
'
consult"
 can mean. They have suggested this in three cases, the Haida case, the Taku case, and the Mikisew Cree case, all of which dealt with consultation regarding administration actions like the granting of forestry licenses. They have suggested that '
'
consultation"
 can mean anything from simply providing information to an Aboriginal group and giving them an opportunity to present written observations all the way up to a requirement to accommodate, which, in other words, is a requirement to take whatever actions are needed in order to address that First Nation's concerns.

Because of this vast range of possible meanings of '
'
consult,"
 if we were to put the word '
'
consult"
 in the bill, we would probably be litigating it for the next 10 years as each group argues what they think it means on that wide spectrum. That is why there would be a real problem with using a word like that because it just does not have a defined meaning.

The Deputy Chair: Then I would go back to the other question. Could the groups not sit down with you and come up with a mutually agreed-upon definition that would be applicable to the bill?

Mr. Duncan: A mutually agreed definition of '
'
working with"
?

The Deputy Chair: Or '
'
consult,"
 so that both parties have a definition so that you both know what it means.

Mr. Duncan: I hear what you are saying. On the other hand, this bill was developed in good faith by working together. We continue to make that commitment. If we try to put meets and bounds on what '
'
working together"
 means, does it not undermine the concept of working together? I do not know. I think we are debating something that is not very productive. That is my take on it.

The Deputy Chair: I will ask one more question; then we will turn to Senator Dagenais. The other question is with regard to the non-derogation clause. Some of our witnesses have said that they will conditionally support the clause that is there now. Others have said that they still object to it. I would like to know what the rationale for adding the restricting phrase to the clause is. In fact, some of the witnesses have said that adding the restrictive phrase actually makes it a derogation clause as opposed to a non-derogation clause.

Mr. Duncan: It helps to talk about examples. If you are talking about protection of source water, there may be a treaty or Aboriginal right to run horses, to have a hunting camp or something like that. That all works fine, unless you are going to set that up adjacent to a potable water source. I think everyone concurs that you can infringe upon that right in order to protect that water source. This is the easiest way for me to comprehend why this is significant and important, and I think everyone involved in the negotiations around the legislation felt that this was an appropriate infringement. The courts have already come to that conclusion as well. That derogation clause is consistent with jurisprudence. You can infringe upon treaty rights for health and safety rationale. It is very specific.

I think the language, if I recall, was actually suggested by the Alberta treaty chiefs.

The Deputy Chair: Yes, I think you are correct.

[Translation]

Senator Dagenais: Thank you very much, Mr. Minister, for your testimony.

[English]

I have just one question. Will the government continue to fund water and waste water systems on First Nation lands?

Mr. Duncan: The simple answer is yes. We will continue to make investments. Between 2006 and the end of the next fiscal year we will have invested about $3 billion in water and waste water infrastructure and related public health activities in First Nation communities. The last budget committed $330 million over two years to build and renovate water infrastructure on-reserve and to support a long-term strategy to improve water quality.

Basically we continue to work with our First Nation partners. As I described, we are working with a technical working group to ensure our capital spending is prioritized and accommodates this legislation.

Madam Chair, I will have to pull up stakes here. I regret that I have to do that. I would love to stay for a while and I would love to hear Grand Chief Weaselhead's testimony, but I do have other duties.

The Deputy Chair: Perhaps your colleagues will remain so we can ask questions of them.

Mr. Duncan: Yes, they have made that commitment.

The Deputy Chair: Thank you very much.

Senator Patterson: There was a concern expressed by some witnesses that the regulations might be imposed before First Nations were ready, before the infrastructure was in place or before capacity was reached through training. Could someone comment on that concern, please?

Gail Mitchell, Director General, Community Infrastructure Branch, Aboriginal Affairs and Northern Development Canada: I can comment on that.

As the minister mentioned in his speech, the spending in water and waste water infrastructure over the past number of years and into the coming year totals around $3 billion. That covers a range of activities from operating systems, building new systems, renovating or refurbishing existing systems and training of operators. That is an ongoing set of activities in which the department supports First Nations.

We have five-year planning processes, so we, on a daily, weekly, monthly basis, are involved in working with communities to identify the issues they are facing and plan for the investments and the training required in order to get those systems. We do annual risk assessments of those systems so we have a very good picture of the status of those systems and how we need to proceed over the coming years in order to align those with any eventual regulations.

Senator Patterson: Do I understand that basically the way this will work is that the minister said regulations will come into force once communities have the capacity to adhere to the regulations? I think I have paraphrased more or less correctly.

Do I understand correctly, just to be crystal clear here, that the department's plans would be to work with First Nations on a regional basis to develop regulations and, parallel to that, there would be work on infrastructure and capacity building and the regulations would not come into force until all of that comes together? Is that the plan?

Ms. Mitchell: That is correct. Yes, that is the plan. The minister also mentioned that this will take many years to roll out because there are so many layers and there is a lot of work to be done. We are well away in getting that work done.

The Deputy Chair: If I could follow up on that, I think that is an important point. There is probably some fear that maybe those commitments will not be made because nothing is necessarily in the bill that says that, or there is nothing in writing except perhaps on the occasion, for example, with the Alberta chiefs there is actually a letter from the minister committing to that. I think other First Nations or other First Nation organizations would like to have some form of commitment other than just someone saying, '
'
Yes, the minister is saying that."
 

Is there something that could be sent to all the organizations involved that commits to the same thing that is committed to by the minister to the Alberta chiefs, for example, to say what you just said, that the regulations will not be placed upon any First Nations until they are actually ready in terms of the training of the operators and the infrastructure is in place so they are capable of performing what is expected of them, and they will not be put in a position where they will be unable to meet the regulations and therefore be liable to penalties?

Ms. Mitchell: In addition to what we have said publicly in statements made here before this committee and in other public fora, we can certainly consider other ways of signalling this.

The Deputy Chair: Could you give me an example of how you would do that?

Ms. Mitchell: I suppose we could provide copies of transcripts of statements made at this committee to First Nations.

The Deputy Chair: Is it possible that it could be a directive to all First Nations, such as a news release to First Nations saying what commitment has been made? Although it is not in the bill, could it be something they can look at and feel assured that it would be a sign of good faith that the good working relationships will go beyond the three groups that have worked well so far?

Ms. Mitchell: We can certainly look at that. I do believe previous press releases did make those very statements around timing of rollout and aligning of investments with the capacity of communities to abide by any eventual regulations, but we can look at doing that again.

The Deputy Chair: Is it possible, rather than just a blanket press release, for you to actually direct it to the grand chief of the Assembly of First Nations or the main chief of the Assembly of Manitoba chiefs, or the main chief for FSIN?

Ms. Mitchell: We can certainly take a look at that.

The Deputy Chair: Could you do more than take a look at it? Could you actually find out if it is possible and let us know very shortly whether or not that is actually achievable?

Ms. Mitchell: Yes.

Senator Meredith: The minister mentioned the ongoing funding for the infrastructure. Ms. Mitchell also mentioned the operators. There is a concern that these operators, once trained, will be lured away to other jurisdictions. I have a concern about that because it would then jeopardize the treatment plants and so forth.

What incentives do we have in place in these training dollars going forward, or the infrastructure dollars going forward, that will incentivize these trained operators to stay within their communities? I think it is important that this committee understand where it is going because everything else hinges upon that.

Ms. Mitchell: One of the things we heard very clearly from First Nation leaders, when we talked to people through the fall on this very question, among others, was the question around pay scales for operators.

We are in the process of taking a good hard look at that and are putting additional money into the programming to support operators. That should enable community leaders, band councils to take a look at their pay scales and provide for competitive pay rates as one component of retaining trained operators. You are right; that does happen. People do get trained and are attracted by higher-paying jobs elsewhere. We have a focus on how to enable people to stay in their communities, and part of that links back to the compensation they receive for the work they do.

Senator Meredith: With respect to training women to stay within the community because they are more stable and they tend not to leave, I think it is an important initiative that we engage women within these respective communities to remain there and be the consistency. What is the strategy in reaching out? I believe that is something that should be looked at — if it has not been already — in a really stringent way to ensure you have consistent, trained individuals who have a vested interest in remaining in the community.

Ms. Mitchell: We are looking at it, and that is a point raised before on many occasions: We need to focus on enabling women. We have women operators across the country and will be looking at ways to specifically target increased focus and interest from women to take up these types of positions.

Senator Brazeau: My question is for Ms. Mitchell. It was noted earlier by you and the minister that since 2006, close to $3 billion has been spent on clean and safe drinking water in First Nations communities.

Going forward, has the department conducted any costing on what will be needed in terms of infrastructure, training and other investments, so that if and when this bill passes, we will be in a position to properly implement it — and also the regulations — at a later date? Has the department done any costing of what we might be looking at in what is needed within a five- to ten-year time frame?

Ms. Mitchell: Thank you for the question. We undertook an extensive assessment of water and waste water systems. We reported on that last year. That report contained very detailed analysis of the gaps in the existing systems as well as the need, over a 10-year horizon, in communities.

We have a very precise picture — community by community, system by system — of the types of upgrades required, as well as the forecasted need over a 10-year horizon. We are using that data now as part of our five-year planning to assist in prioritizing investments.

Senator Brazeau: Is the costing done by the department, or working with First Nations communities to provide the department with what they believe is needed in investments?

Ms. Mitchell: It is a combination. The assessment was undertaken by an external consulting engineering firm, an external third-party agent. As we do our annual planning, we work closely with First Nation communities. We ask them to submit plans. We do not just focus on water and waste water; we are looking at a range of infrastructure. We work with them to identify the need. We have our national assessment data, which helps be a counterpoint and a discussion point. Based on that, we develop the plans on an annual basis.

Senator Brazeau: In some respects, those First Nation communities may still have concerns with this bill, specifically with a lack of identifiable funding mentioned in the bill, which is not routine with respect to legislation passed with First Nations people. However, I suppose there is a responsibility from First Nations communities — who may still have concerns — that once that they are in a position to identify what their needs are in terms of investments, infrastructure, and training dollars at a later date, that might decrease the level of uncertainty with respect to investments.

Ms. Mitchell: It may very well. Our hope with the national assessments was to give us a baseline to inform the future development of regulations so we could all understand — government and First Nations — what we were looking at, by way of those gaps.

The Deputy Chair: What sort of processes have you taken since you completed the inventory? Have you had regular meetings with the various First Nation organizations to let them know what the findings were? From their side, is there a plan in place whereby they would know where the government is planning to go with regard to prioritizing and which route will be taken so they know what is coming down the tubes for the next five or ten years?

Ms. Mitchell: We do an annual five-year plan and update it every year. It will identify the infrastructure investments that will be made, including water and waste water. We are working very closely with communities on a regular basis through all our regional offices to develop those plans, cost the issues and understand how these fit on overall priority list. We are always managing priorities — health and safety being our major priority area — and the investments that address health and safety issues are at the top of the list.

The Deputy Chair: When you say you work with the communities on a regular basis, is there actually a formal mechanism of providing them with summaries of progress or what the plans are?

Ms. Mitchell: We develop a publicly available infrastructure investment plan. We do that on an annual basis.

The Deputy Chair: Does that mean you post it on the Web?

Ms. Mitchell: We provide it to communities as well. Our regional offices work with the communities. They prepare those plans, consult with the communities on the development and prepare a national summary of those plans which we make available. The regional plans are also made available.

The Deputy Chair: The heads of the major First Nation organizations and the chief and council would receive this type of information on a regular basis?

Ms. Mitchell: They should be receiving it on an annual basis.

Senator Raine: I wonder if you could clarify clause 7 with respect to the regulations under this act prevailing over laws and bylaws made by a First Nation and to what extent, and also in relationship to clause 14, the schedule, and how that all works. I do not quite understand in which case the regulations would override a First Nation's existing bylaws.

Mr. Salembier: I will answer that question. Dealing first with clause 7, if you are going to have a regulatory regime that will be enforceable, you need to ensure that when the time comes to enforce the regulations there will not be another law out there competing with it. If you say the level of E. coli cannot be more than 10 parts per billion, and if you have another law out there that says it is allowed to be 20 parts per billion, you will have nothing but confusion when you go to enforce it.

First Nations operating under the Indian Act have a power to make bylaws in relation to water cisterns and water systems. The danger would be that the First Nation bylaw might say something different than the federal regulation. The case law as to whether a regulation prevails over a bylaw is inconsistent. You need to have something in the statute to ensure you can put a system in place and a system of rules that you will be able to rely on in order to enforce; there will not be a plethora of competing rules out there, and you have to litigate each time to see which one actually applies in a given circumstance.

Senator Raine: In drawing up the regulations, the ministry will be working with the specific First Nations to decide which regulations will go in place?

Mr. Salembier: Yes, although given the number of First Nations in any region, it is not likely the federal government will be working with a representative from every single First Nation. Instead, they will be working with groups representing those First Nations. As you know, it is always possible to have political representatives who are of one view and individual members of a society or individual groups who do not share that view.

The fact that representatives of, say, all Alberta First Nations might work daily with for weeks or months with the government to develop a regulatory regime that the majority of First Nations are happy with does not mean that there will not be one group there that says, '
'
We do not accept what our representatives have negotiated, and, therefore, we are going to enact rules that contradict the federal regulatory regime."
 

Hence you have this rule, then, in a statute that says once a set of regulations is developed for a region, it is those regulations that will be the rules that will govern, so that you can have an enforceable regime. That rule is dealing with the vast majority of First Nations.

Clause 14, in particular clause 14(2), deals only with a small group of self-governing First Nations, those that have entered into treaty land claim agreements with a self-government component. Many of those regimes have a clause that says in case there is any conflict with any of the laws the self-governing First Nation enacts with any other federal statute, then our laws prevail over the federal statute. Clause 14(2) says to a self-governing First Nation, if you request to come under this regime, then you have to come into it knowing that if you opt into a regime you will have to abide by a set of rules that are in the regulatory regime and that, again, you have to come in knowing that you are undertaking not to enact contradictory rules that would then make the system impossible to administer and enforce. That is all clause 14(2) deals with, namely, giving notice that if you opt into the regime you have to agree to follow the rules, and, again, it is completely at their option if they want to come in

The Deputy Chair: I would like to follow up on that. I think this is probably related to the minister when we were talking about the non-derogation clause. The minister said something to the effect that you pick the particular phrase to limit it because without doing that it would leave parts of the bill to be rendered inactive.

For instance, in clause 14 where you are talking about the parts of the bill that override First Nations law, if we had the standard non-derogation clause, would that make clause 14(2) difficult or impossible to enact? Is that why the limit was put on the non-derogation clause?

Mr. Salembier: No, I do not think that the non-derogation clause in clause 3 really was ever intended to deal with self-governing First Nations. In most cases, one of the reasons self-governing First Nations have self-government land claims agreements is they have dealt definitively with their Aboriginal rights in their agreement.

I do not think there was any intention that the clause 3 non-derogation clause was intended to be read in conjunction with clause 14.

There is no question. Clause 14 would be very difficult to implement. I have worked with First Nations in other spheres who are self-governing but have requested to become part of federal regimes. It is because they have all of these provisions in their agreements saying that federal laws do not apply. It does, in fact, sometimes make it very difficult to adapt their federal regime in order to allow it to work well with a self-governing regime. Essentially, you have two different levels of government, each of which has a whole range of rules, and it would be more happy coincidence than anything else if they could actually work together. Most of the time they just do not fit together.

Clause 14 would be a very difficult thing to do. I believe that the idea was that it is included just to make sure that there would not be anyone out there who would want to become party to a regional set of water safety rules but would be precluded from becoming part of it since otherwise this bill only applies to First Nations on reserves and not to self-
governing First Nations. It is a very difficult thing to do, and there would be no guarantee of success, even if a First Nation wanted to opt in.

Senator Munson: I wish the minister could have been here a little longer than 20 minutes to appear before the committee. We have always said, even the Conservative side, '
'
No minister, no bill."
 I do not think 20 minutes is enough time to talk to the minister, to have a conversation about these issues. I recognize that he has a lot of important things to do, but I would like to have that on the record.

With respect to the infringement upon First Nations jurisdiction, we have also had that discussion. Bill S-8 overrides First Nations bylaws dealing with water waste, as well as constitutionally protecting self-governing agreements in the provincial incorporation by reference.

What options is the government considering, if any, to address First Nations' key concerns over jurisdiction of water? Is the government willing to accept the solutions proposed by many First Nation groups to this Senate committee? There have been some solutions proposed, for example, to allow incorporation of bylaws into regulation, create an exemption list of First Nations that have adequate water systems and exempt in whole all self-governing First Nations. Could one of you respond to those questions?

Ms. Mitchell: We are still considering views on those questions. I think it would be premature for us to respond definitively at this time, but we have heard those and we are examining them very carefully.

Senator Munson: What does very careful consideration mean? Does it mean that once you have considered these, we will come back before this bill is passed to look at something else? I am sure there will be amendments to this bill. I do not think they may be passed, but I think we have to put on the record some of our concerns.

Ms. Mitchell: I understand that clause by clause may be proceeding fairly soon, and I think that is a point or opportunity to understand more about what the potential language may look like. We have heard the concerns and are looking closely at them.

Senator Munson: However, nothing will change in terms of the bill. You say as bureaucrats that you are considering this and taking a hard look at this. That is important because that is part of the input, but would what you are considering in any way alter this particular bill that we just talked about going soon to clause by clause?

Ms. Mitchell: We will give advice on the matter, and the committee will consider any amendments that may be moved to the legislation, and we will give advice on those.

The Deputy Chair: I do not think we have made a decision yet as a whole committee as to where our next steps will be. It would be a little presumptuous to say we would do clause by clause immediately or soon. We will discuss it.

You did sort of commit to the fact that you would look seriously at these things. Perhaps it would be, I think, an act of good faith if you looked at them seriously and came back with some suggestions.

Senator Munson, did you have any more questions?

Senator Munson: That is it for this morning.

The Deputy Chair: I think we have time for a quick question from Senator Ataullahjan.

Senator Ataullahjan: Thank you. My question is regarding the non-derogation clause. We have heard that this would be used only in exceptional circumstances. What type of situations could arise that would result in the use of this clause?

Mr. Salembier: In this committee, we have discussed the effect of non-derogation clauses before. Unfortunately, it is a three-part answer.

As you know, the Supreme Court of Canada has indicated that Aboriginal and treaty rights are not absolute, as the minister indicated. They can be infringed upon by regulation, but only under certain conditions. If there is an infringement, the government has to justify that infringement by pointing to a valid federal objective. As the Supreme Court said, one valid objective would be to prevent the exercise of section 35(1) rights that would cause harm to the general populous or to the Aboriginal people themselves, things like health and safety. The other part of the justification test is showing that the Aboriginal and treaty rights have been impaired to the least extent possible to meet that objective. Also, in looking at justification, the court will look at the degree of consultation that the government has undertaken. That is the justification test.

The courts have never interpreted any of the existing non-derogation clauses that are out there. Therefore, we cannot say with any certainty exactly what effect a typical non-derogation clause would have. By a typical one, I mean the ones out there, ones unlike clause 3 that do not have any exception to them, saying '
'
except to the extent necessary to meet the conditions of a particular statute."
 

One of the possible interpretations a court might give to a non-derogation clause would be to tell the government, '
'
By this clause, you have waived your right to justify any infringement."
 They might interpret this as the government giving away its right to justify. In other words, therefore, a non-derogation clause, from an Aboriginal point of view, would be looked at as giving more than section 35 because now you would be getting section 35 but with no possibility of justification by the government.

In fact, a typical non-derogation clause can be thought of as section 35 plus, giving you more. The clause here is, in the additional rights that are given by the typical non-derogation clause, limited. It gives an exception to those additional rights that a non-derogation clause might add by saying that it has exempted any infringement that would be necessary to ensure the health and safety of Aboriginal members of the community, in other words, the safety of drinking water on-reserve, which is the objective of our bill.

At most, I would think that this non-derogation clause would be interpreted as giving more rights than section 35 but not as many more rights as a typical non-derogation clause might give. It still gives more — it is still section 35 — but not as much as a typical non-derogation clause. I know it is a little difficult to understand when you are talking about exceptions to exceptions.

I can give one illustration. If you go to a restaurant and say that you have a right to have apple pie for desert, those are your section 35 rights. Written on the board, it says, '
'
Today, we will give you an additional right of ice cream."
 Your additional right is your ice cream; that is your non-derogation clause. There is an exception to that additional right, which is that you can have ice cream but not chocolate ice cream because everyone knows it does not go with apple pie.

The non-derogation clause is giving you something extra but not as much extra as you would have gotten if you had the choice of any type of ice cream. The fact of the matter is, by getting something extra but limited, you still have your right to the apple pie; you just do not get as much ice cream.

The non-derogation clause proposed in this bill does not take away at all from section 35 rights. It could not anyway; it just does not give as much extra, if anything, as it would if it did not have, '
'
except to the extent necessary to ensure the health and safety of drinking water."
 Does that help at all?

Senator Ataullahjan: Can I have an example relating to water and maybe not to apple pie?

Mr. Salembier: An example relating to water might be, suppose a rule in the regulation would say that you cannot locate a garbage dump within 100 metres of a water source. Normally, if a group asserted an Aboriginal right and said, '
'
We have a right to use our reserve land whatever way we want. It is an Aboriginal or treaty right; therefore, your regulation cannot limit that right,"
 the government would step in and say, '
'
This rule is justified because if you put your garbage dump there, you will pollute your water source. Even though you have a very expensive water system, it cannot filter out all of those toxins."
 A typical non-derogation clause might say, '
'
I am sorry, government, you cannot justify that infringement. You have infringed because a rule does affect the use of reserve land. You are not allowed to justify it by saying that it is reasonable, protects health and safety and is the minimum that you can do in order to ensure that."
 Therefore, a typical non-derogation clause might preclude the regulations from forbidding garbage dumps to be placed next to a water source.

By putting this exception in here, we are saying, '
'
Yes, you may have some limits on your justification, but one thing you will be able to justify will be an infringement that is designed to ensure the safety of drinking water."
 Having this clause in here in that situation might allow the regulations to operate in a way that will produce a desired result, which is clean drinking water.

The Deputy Chair: Thank you. We have run out of time but I cannot help myself; I have to ask a supplementary.

I understand the example that you gave with respect to water. I thought it was a good example, but it occurs to me that by putting that exception in there, you are saying that First Nations do not have the wherewithal to decide for themselves that it is a bad procedure to have a garbage dump 100 metres from the water intake or whatever. The essence of it is saying that First Nations do not have the knowledge, the insight or whatever to look after their own safety. I think many people would find that objectionable because there are many trained people. They have access to many people who can advise them. It is a colonial mode of thinking that they cannot look after themselves.

Ms. Mitchell: I think the intent is not to suggest that there is not a capacity to make those types of decisions. It is really setting a framework for when you do have actions that could put people at risk. Those actions may be asserted by individuals. It may not simply be a matter of a location of a solid waste facility. It may actually be the example that the minister cited related to the use of land or movement of livestock across land. That may be individuals taking those decisions as an Aboriginal right or a treaty right. It is really about balancing these rights with a need to ensure health and safety.

The Deputy Chair: Again, from a First Nation perspective, it always seems that the balance is in favour of the outside community and that First Nation knowledge is always considered to be less than or not as informed as what comes from the outside community. I think that is the basis of the objection; you are discounting the expertise that is within First Nations or available to First Nations.

Ms. Mitchell: It is certainly not the intent to discount.

The Deputy Chair: That may not be the intention, but that is the way it is viewed. I am sorry; we have run out of time. We will call the next witness. We were only supposed to go until 9:30.

Karl Carisse, Senior Director, Innovation and Major Policy Transformation, Community Infrastructure Branch, Aboriginal Affairs and Northern Development Canada: I just wanted to jump in to say that you would have the same types of standards and regulations off-reserve. It is the same as you would see in the City of Toronto or in other regulations. We are not going against anything like that.

The other thing to keep in mind is that within a lot of communities there are certificate of possession holders, third parties and all sorts of industry. We know from the past, off-reserve or on-reserve, industries have done different things that have impacted the environment.

As Ms. Mitchell was saying, it is just to put a good framework. This would be a comparable framework to what you would be seeing outside reserves to have on-reserve.

The Deputy Chair: With that, we will call the next witness from the Treaty 7 First Nations Chiefs Association to the table. Thank you very much for your testimony this morning. Honourable senators, our next witness is representing Treaty 7 First Nations Chiefs Association of Alberta. Please help me in welcoming Grand Chief Charles Weaselhead. We will also have Brent Scout, Grand Chief's Liaison.

Please proceed with your presentation.

Charles Weaselhead, Grand Chief, Treaty 7 First Nations Chiefs Association: Thank you, Madam Chair. Good morning, honourable senators. Thank you for inviting me to speak to you about the historic partnership between Canada and First Nations to improve water quality on Indian reserves.

I would also acknowledge and thank the Algonquin elders and chiefs for welcoming me into their traditional territory.

Honourable senators, on behalf of Treaty 7, I am pleased to submit that we are cautiously optimistic that Canada says that it is taking concrete action to protect drinking water on Indian lands through its reintroduction of the safe drinking water act for First Nations. I am especially pleased that it has made critical amendments to protect our constitutionally protected rights.

We are all born of water. We are all treaty people and, as First Nation Indians, we have high expectations and great hope for collaboration in the true spirit and intent of our treaties and inherent rights. Our hope is that this legislation will be a vital step towards ensuring that First Nations have the same access to safe, clean and reliable drinking water as all other Canadians.

First Nation drinking water has had a history of infamy in Canada. In comparison to drinking water off-reserve, the quality of on-reserve water is largely unacceptable. After decades of neglecting critical issues, it is promising to see a federal government finally taking real steps to address this national embarrassment.

As a matter of national priority, this enabling legislation is a result of a collaborative approach consistent with the true spirit and intent of our treaty and our inherent rights. It is time the Crown followed through on its commitment to move forward, to begin establishing the relationships critical to rebuilding our nations by not just reforming the status quo but also engaging in true transformational change in public policy and the way governments do business with us, as committed to by this minister, the Honourable John Duncan, and with Prime Minister Stephen Harper at the most recent Crown and First Nations gathering. We must continue to create a process based on the rights and reconciliation agenda.

Our joint success on this legislation, which was more than two years in the making, also demonstrates that if governments are willing to work in good faith with First Nations, constructive solutions can be found. Indeed, the success of the collaborative approach on this legislation, which raised many difficult issues, should be a clear message that federal and provincial governments should abandon their empty lip service about working with First Nations and actually come to the table to work with us to find solutions to safe drinking water and waste water infrastructure, among other key issues.

I thank the honourable minister for inviting Alberta chiefs in making the important announcement in February that Canada has the political will and good faith to take concrete action to protect drinking water on Indian lands by introducing Bill S-8 in the Senate. As you can appreciate, it is our duty to protect the security and safety of First Nations' water supplies and to guard against infringements of our treaty and inherent rights. Therefore, Alberta First Nations are pleased with the minister's efforts to work collaboratively on this legislation.

As you know, honourable senators, the bill faced opposition due to many outstanding issues, including the lack of meaningful consultations, the lack of an inclusive regulatory process and now the inclusion of a non-derogation clause to protect treaties, capacity and resources. With its reintroduction, a number of amendments have been made to the legislation to address our concerns, such as Canada's addition of an important clause to limit the likelihood that the legislation would interfere with our treaty rights.

The new law is not perfect, but it is an important starting point that promises to lead to other measures that are necessary to ensure the safety of First Nations drinking water. The success of the legislation and, ultimately, the safety of First Nations' drinking water will require that the collaborative approach to the development of the legislation must carry over into the development of the regulatory regime under the legislation and, most critically, to address the decades-long chronic underfunding for First Nations' drinking water systems.

Furthermore, while this legislation purports to create new regulations in collaboration with First Nations, the act does not specify how First Nations will be equipped with the facilities, skills and resources to meet those regulations. First Nations need infrastructure, training and support to meet the requirements of the new regulations. Regulations without the capacity and financial resources to support them will only set up First Nations to fail. We must address the capacity gap as well as the regulatory gap.

While Alberta chiefs have given our conditional support, Treaty No. 7 chiefs feel this is an important first step and are pleased that Aboriginal and treaty rights are being respected and recognized. The chiefs insisted on true partnership and collaboration in the process that led to changes to this legislation. The same collaborative approach must continue if regulatory development is to be successful and a long-term funding solution is forged.

It is my hope that this new cabinet will consult and continue to negotiate in good faith with First Nations on partnerships and new approaches for mutual benefits and greater certainty through meaningful consultations on resource development, water management and allocation, regulations based on the duty to consult and, more important, rooted in the spirit and intent of our treaty and our inherent Aboriginal rights.

It is a sacred trust; it is a work-in-progress. The act alone cannot and will not ensure the safety of First Nations drinking water. Indeed, without other accompanying key measures, the act may have a detrimental effect on First Nations by imposing standards that First Nations clearly do not have the financial resources to satisfy.

I commend the Honourable Minister Duncan, who recognized that more was needed. He signaled a keen willingness to work with Alberta First Nations on our issues with the legislation. At our request, and with Canada's agreement, we engaged in about two years' worth of without-prejudice negotiations as opposed to true consultation. The result was that about 80 per cent of the core concerns of Alberta First Nations were addressed by way of amendments to the legislation, including but not limited to a non-derogation clause; changes to narrow the scope of the regulations to drinking water and waste water standards; clarification that those third-party systems on reserves would not be deemed to be the responsibility of First Nations; a commitment to work with First Nations on regulatory development; a delegation of authority to First Nations to set out own rates for water services.

In addition to these changes, the minister also provided a letter to Alberta chiefs committing his department to working with Alberta First Nations on joint and collaborative development of the regulations. Discussions to begin planning that process are about to get under way.

However, the support of the Alberta chiefs is not unconditional. Two conditions are attached to the support of Alberta First Nations for the legislation.

First, we must reach agreement on an adequately funded joint process for the development of the regulations. We have done more work on this than any other region and, by our most optimistic estimate, this process will take three to five years. If the regulations are not developed carefully and thoughtfully, they will not work for First Nations, and all of these efforts to date will be for nothing. We are of the view that the minister understands this.

Second, the national engineering assessment identified that only three First Nation systems in Alberta are operating safely with certainty. Two of those three are operated under agreements with adjacent municipalities. About a dozen systems in Alberta pose significant risks to human health. Approximately $160 million is required to enable First Nation drinking water systems to meet the same standards enjoyed by non-native Albertans. We are willing to be patient and to permit the government time to address this significant and persistent funding deficit, but our patience is not limitless in this regard. Without these resources, nothing will change. Therefore, in addition to the act, the Government of Canada must also make a firm commitment toward infrastructure, monitoring and capacity.

Thank you for your time. I look forward to working with my fellow chiefs and the Crown in collaboration to ensure deeper understanding and a transformational shift in the status quo to safeguard drinking and waste water on Indian lands.

The Deputy Chair: Thank you, Chief Weaselhead. As chair, I will take the prerogative of asking the first question.

Thank you for that very clear presentation. It is clear that you have had a good working relationship, and you have set out your conditions very clearly. I am from Saskatchewan, and the Federation of Saskatchewan Indian Nations has not had the same opportunity to work with federal government authorities as you have had. Why was your group chosen to work so closely with the government? Did you approach the government? Do you not think that same approach should have been taken with the other regional First Nation organizations rather than just a select two or three?

Mr. Weaselhead: Thank you for the question, Madam Chair. Alberta chiefs of Treaties 6, 7 and 8 have made repeated submissions to the provincial and federal governments with regard to the crisis of access to clean drinking water. I am not certain why our region was chosen to have in-depth, without-prejudice negotiations with the federal government.

Of course, our position in Treaties 1 to 11 is very collective; all treaty areas must be given the same opportunities. In Alberta, we are not in a position to move forward unless the same opportunity has been given to all First Nations.

That opportunity was provided to us in Treaties 6, 7 and 8 in Alberta in the last two years. We have worked hard in our negotiations to ensure that those conditions are met by the federal government, as I said in my presentation.

Senator Meredith: Chief Weaselhead, thank you for appearing before us this morning. This committee has heard the minister's staff try to explain '
'
duty to consult,"
 '
'
working with"
 and so forth. Why did certain bands in B.C., for example, not take this opportunity to come to the table to talk about their concerns rather than staying away and saying they were not consulted?

Have other chiefs told you why they were reluctant to participate in consultations that apparently took place over a period of one year? You said that yours took two years.

Mr. Weaselhead: Former Minister Strahl introduced Bill S-11, and we had many difficulties with its process. Treaty 6, Treaty 7 and Treaty 8 flatly rejected Bill S-11 dealing with the process of consultation. We believed that there was no consultation provided for the Alberta region. We had one meeting with representatives of the federal government and we said that consultation was not being developed in the form that we understood it would be. In Alberta we opposed the introduction of that legislation and the process itself. We did not believe that consultation was carried out.

When Minister Duncan became the minister, we had the opportunity to meet with him in Edmonton where we expressed our concerns and challenges and explained our position on Bill S-11. We flatly rejected it.

It was an opportunity that presented itself. The minister explained to us that he would be willing to meet with Alberta chiefs so that we can go down the road and reach some kind of consensus. If I remember correctly, the minister also said that he would be travelling nationally to all of the other regions to provide that same opportunity.

As I said in my presentation, we did not regard the last two years as consultation; it was more without-prejudice negotiations. We explored the many options that we had. We introduced in Alberta, from a treaty perspective, those conditions that we have outlined. After many months deliberating with our technicians and with our legal advisory group, we were able to reach some kind of an agreement to date on this.

The Deputy Chair: To continue along with the theme of consultation, many of our other witnesses have said to us that they were not consulted or did not feel they had significant input into the bill, whereas you have had, I think you called it, without-prejudice negotiations and significant input into the bill and that you are mostly satisfied with it.

With regard to the other organizations that are opposed to the bill because they do not feel they have had input, should we not recognize that they do not feel that they have had the same level of input into the bill that you have?

For instance, the Council of Yukon First Nations, the Federation of Saskatchewan Indian Nations, the Union of BC Indian Chiefs, the Mohawk Council of Akwesasne, the Nisga'a Lisims Government, the Assembly of First Nations, the Chiefs of Ontario and the Assembly of Manitoba Chiefs have all stated that they do not believe that they were consulted. A significant number feel they have not had input into the bill. What is your take on that?

Mr. Weaselhead: Again, I wish to recognize that all regions should be provided the same opportunity that Alberta chiefs have been provided in regard to the without-prejudice negotiations or an opportunity to continue to meet with the federal government until they reach consensus on their concerns.

It is not Alberta's position to move forward on an individual basis. If our treaty rights are infringed and our Aboriginal inherent rights are not protected, we will again establish the same positions on those. The bottom line to this is that I do agree with you that every region, every treaty area, every tribe and every community should be provided the same accord provided to Alberta chiefs in Treaties 6, 7 and 8.

The Deputy Chair: I would suspect there is great concern that if we proceed with the bill, if the bill somehow gets passed, that they will then not be afforded that same opportunity. Does that temper your support for the bill? Do you think, as a condition for the bill, that other First Nations should be afforded the same sort of opportunity?

It seems to me, from your presentation, that consultation is important, but nothing will change, I think you said, until the funding gaps are addressed. If the bill were to be withdrawn or delayed until other organizations have had an opportunity to have significant input, it may not really cause any distress with respect to drinking water on other First Nation reserves.

Mr. Weaselhead: Again, our position is that we have been patient this long; if Canada wishes to provide the same opportunity to other regions, we would be willing to wait and be patient with the new legislation until we get it right for everyone. I am not sure if we can reach total consensus on the legislation itself.

I have stated our position, that we are willing to be patient. If other First Nations, other regions, would still like to explore further discussions and consultation or without-prejudice negotiations, I am willing to support that.

The flip side to this is that we also need to understand that our people, my people, are suffering in regard to access to safe, clean, reliable drinking water and a proper infrastructure for waste water management. There is a flip side to waiting on this, but if there are First Nations regions, communities, tribes out there that are asking for more consultation, more discussion and more negotiations, then we in Alberta Treaties 6, 7 and 8 hope the government can provide the opportunity to everyone.

Senator Ataullahjan: Grand Chief, you said this bill was an important starting point. You had some specific suggestions for us. You were looking for a firm commitment toward infrastructure, monitoring and capacity. What form would that commitment take?

Mr. Weaselhead: I am not a technician or a policy-maker, but definitely some wording can be presented or put forward from the federal government that will ensure that funding is specific and it parallels the infrastructure that is required to make this work. I also heard in the previous presentation that capacity is needed for our people to do this.

In Alberta we have the Technical Services Advisory Group. They have provided a circuit rider training program for a number of years now. We also have our First Nation organizations that are ready to provide the training and monitoring. Definitely, if we are talking about something substantial in regard to that, I think a guarantee should be put in writing that the funding will match the need, that the capacity and the growth in making this legislation a success will not be limited by time, that it needs to be given the right opportunity in terms of time so that we can train our people, can fully engage ourselves in the process of the definitions of the regulations and can be provided the full opportunity to be engaged for those reasons at this point in time.

I have said before, the writing of legislation in itself will not make this work. A couple of key themes around the table are, first, yes, I do support the inclination that all First Nation regions should be given further time if they wish to discuss, consult and negotiate. Second, I have given my position that funding needs to be followed through; there needs to be a hard commitment by the federal government to provide adequate funding to make this work. We will not accept lip service or piecemealing of this over a long period of time or the funding does not match the need. Third, our people, our young people especially, both male and female, must be given the opportunity to be trained so they can work within this.

I am not saying Alberta has the prime opportunity, but as I have stated, we do work with the Technical Services Advisory Group, which has been in operation for a number of years and which will provide the training on our behalf, and that will lead us in regard to coordination of this legislation.

Senator Ataullahjan: You also mentioned that you got a letter from the minister. Did the minister make that commitment?

Mr. Weaselhead: I do not have the letter here with me, but in general terms the minister stated that he will continue to ensure that our conditions are met. Again, when I mention that we are cautiously optimistic, the legislation is coming in first and the commitments are coming in second.

I have to trust the minister's word on this. However, if there is a stronger form that we can introduce by way of the legislation or a greater commitment in writing to all First Nations to ensure this, I would definitely support that.

Senator Patterson: I would like to welcome Chief Weaselhead. I think it is very important that you be here as we end hearing witnesses on the bill and look to next steps.

I will be candid with members of the committee. It seems to me that other First Nations and regions — perhaps not the self-governing ones, and this bill is mainly not about self-governing First Nations — had the same opportunity you did to engage in without-prejudice consultations. We have heard that from the minister this morning.

They did not all take up that opportunity, I think because of mistrust. It seems to me that Treaties 6, 7 and 8, under leadership of people like you, took the leap of faith and engaged. You said there is a certain amount of trust and good faith required here.

I have the official resolution of the treaty chiefs from October of 2011. I am paraphrasing, but it clearly says you want the minister to follow through on the commitment to develop regulations and that it would take time and funding.

You also require that there be a commitment for the financial resources to deliver systems. It mentions a figure of $160 million.

To put it simply — and I asked this of the departmental officials — before the regulations are implemented and brought into force, is it your understanding that you will be involved, satisfied that the regulations are okay and that the capital requirements will be addressed? The officials indicated that was the way it would be. These regulations would not be imposed; they would be done in a collaborative way.

Is that the leap of faith that you are willing to take if we pass this bill?

Mr. Weaselhead: Definitely. We had a resolution by Alberta chiefs a few months ago. It simply stated that in the event Canada failed to satisfy the terms set out above, the Assembly of Treaty Chiefs threatens to withdraw support for the act and its implementation, and take all necessary steps and measures to resist the legislation and all related measures.

As you said, it is a leap of faith. I am asking for the minister's good faith in bargaining and ensuring the conditions we have set up are guaranteed on that. I realize the legislation is coming in first and then we talk about ensuring our conditions. In our discussions we have definitely had legal advice and political advice through our assembly of Treaties 6, 7 and 8 chiefs. We have had our technicians working hard with our discussions and negotiations with Canada and the minister. The minister has repeatedly said that once we get into the establishment of the regulations — I can only speak for Alberta First Nations on that — we will fully engage Alberta chiefs in Treaties 6, 7 and 8, and/or technicians in regard to the establishment of the regulatory regime.

He has repeatedly stated we will ensure that funding required to meet demand and needs to raise the level of safe, clean drinking water and waste water management and infrastructure in our communities will be met. All of what I have to draw on are words at this point in time. If anyone can introduce something that makes it almost a guarantee or 100 per cent that this will be done, I will accept that without doubt.

Senator Patterson: One of the challenges we have in the Senate, as you may know, is that we cannot talk about money in bills. That is not within our power, whether we like it or not. That kind of financial commitment you spoke of cannot be addressed in this chamber, on this side.

The Deputy Chair: To follow up on that, the government made the choice to introduce the bill here. They could have introduced it in the House of Commons where the money issue could have been brought forward.

I will follow up on the issue of the negotiations, consultations. In your presentation, you made it very clear. I am quoting from your presentation, you say the same collaborative approach must continue if regulatory development is to be successful and for a long-term funding solution to be forged.

Certainly, the development of the regulations is key to the success of the bill. You received a letter from the minister where the minister is committing to working with you, and we received a copy of the letter to you. However, other First Nation organizations do not have that same sort of commitment from the minister. We asked the previous witnesses if department officials would engage in trying to get a more general commitment out to other regional organizations so they can feel the government is also committed to working collaboratively with them, some sort of more concrete assurance.

How would you see an initiative like that proceeding? Could you see a commitment put out to the heads of the other regional organizations? Would you support that sort of initiative? Would you recommend that that be undertaken?

Mr. Weaselhead: The minister provided a letter to Alberta chiefs committing his department to working with Alberta First Nations on joint and collaborative development of the regulations.

Again, my position is that I support all of the other regions collectively, Treaties 1 through 11. If the Alberta opportunity is provided I would support that for all the other regions, whether it is further consultation, discussions, negotiation, or a letter provided to the other regions, too. I fully support that, Madam Chair.

The Deputy Chair: Senator Patterson said that it seems as though other First Nations did not take up the opportunity to work with the minister on the development of the bill.

Is it really the responsibility of the other First Nation organizations to step up? It is like putting the initiative on the First Nation organizations as opposed to the minister and the departmental staff who actually are the ones who have written the bill. Do you believe it is the responsibility of the other First Nations to step forward, or should it have come from the top down as opposed to from the regional organizations? Once the minister and the staff are developing a bill, should it not be incumbent upon them to invite input from First Nations organizations rather than saying it is the First Nations' fault for not stepping up and interacting significantly with the government?

Mr. Weaselhead: Madam Chair, perhaps I might respond by stating that I am not fully informed about how the minister approached consultation or discussions with the other regions.

Two years ago, when I first met the minister in Edmonton with our Treaty 6, 7 and 8 chiefs, we introduced our position or the decline of our position on the old Bill S-11. At that time, the minister responded by stating that he would definitely continue to meet with Alberta chiefs until we got it right. I also heard him say that he would be doing a national undertaking of consultation for other regions as well.

We believe, in Alberta, that we worked hard. We continue to employ our technicians with the minister's technicians. We continue to keep in contact with the minister, expressing our concerns. We had our legal advisory group intact, we had our technicians, and, of course, the three grand chiefs from Treaties 6, 7 and 8 met at all levels so we could continue to provide this opportunity for us to bring this piece of legislation that was going to be acceptable to us.

Again, I point out that I am not sure how the minister approached the other regions, and I really cannot speak for the other regions.

Senator Patterson: If I may, to assist the committee, I have been informed that a letter was sent to all chiefs of First Nations by the minister on the issue of consultation in developing regulations. The department informs me that it could be made available to the committee. There was something that we can look at.

The Deputy Chair: That would be helpful. Does it indicate when that letter was sent?

Senator Patterson: I have just opened it — it was just sent to me — and I do not see a date on it, unfortunately.

The Deputy Chair: There was not a date on the letter to the Alberta chiefs, either.

Senator Patterson: We can clarify that, I am sure.

The Deputy Chair: That would be most helpful.

Senator Raine: Thank you very much, and I would be interested in hearing from you as to the positive side of the legislation with regard to filling the gap that exists in protecting your groundwater sources from, for instance, industrial development or any non-First Nation use of the land. Up until this point, I can see where, if someone was polluting the ground source of your water, you had no way of going after them to stop it. Do you see this legislation as being positive in that respect?

Mr. Weaselhead: Definitely. I come from Southern Alberta, Treaty 7, and we also have our Treaty 6 and Treaty 8 up in the northern Alberta region, where the oil development is such a huge undertaking. We also have to realize that First Nations are now just entering into what we refer to as business being open for economic development. We are beginning to see more activity on reserve lands in that regard. There is an environmental issue and challenge all the time, so definitely something like this will help us protect our underground water source.

More importantly, again, the bill speaks to individuals, families and communities about access to safe drinking water and waste water management. Clearly, if the legislation will help us protect activities in regard to water usage, it will definitely be an advantage to our First Nation communities.

Senator Munson: I am curious about your second to last paragraph in your presentation, which, by the way, is a very good and concise one. It has to do with water safety in Alberta and First Nations.

Could you paint a picture? You say that only three First Nations in Alberta are operating safely with certainty, and two of those are operating under agreements with adjacent municipalities. Getting up on a First Nations environment in the morning, in terms of safe water, could you paint a picture of what it is like for thousands of First Nations people in regard to drinking water today and what a person or a child and parents would have to go through to ensure that their child indeed has safe drinking water? I would like to see that picture.

Then you mentioned $160 million is required to enable First Nation drinking water systems to meet the same standards enjoyed by other Albertans. I know we cannot deal with money here, but is that a one-time payment to set the up the infrastructure for monitoring and capacity?

Mr. Weaselhead: Do I have another half hour to paint a picture?

I come from the largest reserve, land base-wise, here in the country. We have water that is being trucked in, in some places. We have public communities where our water treatment plants, in most cases, do not meet the requirements. On a consistent basis, you might see boil water policies in place or that are put in place. Definitely, our water wells and our cisterns are not up to par. On most days, we see that some other communities reach out to municipalities for piped in water, if they are fortunate enough in some cases, so they attach themselves to provincial municipalities.

Definitely, in most communities you do not have access to safe drinking water. If your water treatment plant is working and meets the criteria, you are definitely lucky, but we do not have the standards built in place for infrastructure to provide that.

Every day we see that water becomes an issue. In Alberta, we begin to realize that water is becoming such a big commodity. We are beginning to challenge ourselves with the use of water in regard to oil development and agriculture.

In southern Alberta, we are from an agricultural ranching community. Definitely there is an environmental issue all the time, so the protection of underground source water is number one, and number two is that access to clean, safe drinking water is often a challenge for our young people, for our children and K to 12 learners. It is definitely a challenge, and not only with the housing situation.

Senator Munson: It is such a rich province, though. It kind of boggles the mind that we have to deal with this kind of issue with a province that is so rich and has so many resources in terms of sharing with First Nations people.

Mr. Weaselhead: Definitely, but we have pinpointed some of the challenges we have. Of course, there is the jurisdictional problem with regard to provincial funding and assistance. Federal funding is often not comparable to the provincial standards. That is why it is so very important when we put our conditions in place that the funding must meet the requirements of this piece of legislation.

I mentioned it is a starting point for us. At least we know we can meet the basic needs of our communities, our individuals and our families. Without safe drinking water, it definitely strikes at the very heart of human rights and at the very nature of providing a quality of life for our children and our families in our communities. It is a difficult task for leadership.

As the chief, I know we continue to have those challenges. We cannot begin to speak about a higher level of education or economic development because every day our task is trying to meet the basic needs of our children, our families and our communities.

Senator Munson: Thank you for that. I am curious about the $160 million.

Mr. Weaselhead: That was given to us by our First Nations organization Technical Services Advisory Group. Those are approximate numbers. That was also provided by the national engineering assessment that was done in January of 2011. Those are approximate numbers. In Alberta it will take about $160 million to develop and meet standards for safe drinking water in First Nation communities.

Senator Munson: Thank you.

Senator Dennis Glen Patterson (Acting Chair) in the chair.

The Acting Chair: Thank you. The next questioner is Senator Meredith.

Senator Meredith: Chief, thank you so much again for your passion with respect to seeing this legislation go forward and ensuring that there are financial resources. You indicated in your presentation that for this to go forward there must be that financial component. Hence, First Nations are again set up to fail. None of us around this table want to see that happen. You talked about the quality of life, economic development, our young people, especially our youth and the jobs that are waiting for them in training as operators and so forth.

The Chiefs of Ontario made a submission to us saying that the federal government has never provided enough funding to First Nations to ensure that the quantity and quality of their water systems was comparable with that of off-
reserve communities. Hence, we just heard the minister, while you were here in the room, say that $3 billion to the end of this fiscal year will be spent on ensuring that the infrastructure is brought up to snuff, so to speak.

Chief, are you confident that in moving forward with this legislation, providing when the regulations come down there is a funding component attached, this will go forward to again ensure that there is safe drinking water on reserves right across this nation?

Mr. Weaselhead: Yes, I am. I am confident that we can make it work as far as those two conditions are met fully and unconditionally. As I stated earlier, this piece of legislation by itself will not work. There needs to be adequate funding and the capacity to train our young people. Also, we need to be fully engaged with regard to the development of the regulations.

Senator Meredith: You have heard the minister indicate that that is the commitment of the government moving forward; they will ensure there is funding to continue to ensure that safe drinking water is a priority on First Nations' lands.

Mr. Weaselhead: There is a letter to the Alberta First Nations chiefs from the minister, so I am assured that he will honour his commitments. That is all I have at this point.

Senator Meredith: Thank you.

Senator Lillian Eva Dyck (Deputy Chair) in the chair.

The Deputy Chair: Senator Patterson has a supplementary question.

Senator Patterson: If I may, Madam Chair, I have the letter from Minister Duncan here.

The Deputy Chair: Which one?

Senator Patterson: This was a letter to the Alberta treaty chiefs, Chief Weaselhead, Chief Alexis and Chief Capo. The letter refers to a couple of provisions relating to regulations to be developed under the proposed bill. The minister notes there were concerns expressed by the treaty chiefs about the implementation of regulations covering the fees for water services and the ownership of third-party water systems. The minister's letter makes it clear that the regulations, according to the government's objectives, would provide authority to set fees for water services that would not be imposed on First Nations. That authority would be developed so that you would set the fees rather than an outside party.

Second, if a third party owns a system, the third party will be responsible for that system under the regulations, and problems and liabilities connected with that system will belong to the owner, the third party, not the First Nation.

Did that letter provide you the assurance that you had wished with regard to these two issues of fees for water services and responsibility for third-party-owned water systems on First Nations' lands?

Mr. Weaselhead: We had a teleconference with the minister's office in February of 2012. We asked for clarification in the letter from Minister Duncan on the following issues of concern, and those are the same issues we have had. We have not had a response with regard to the clarification for the fees for water services and the ability to make regulations regarding when a system is deemed to be owned either by a First Nation or an on-reserve third party.

In the letter it stated that Canada is committed to working with Alberta First Nations on the details of the regulatory development process, including funding for that process. While regulations are being developed, which will take at least three to five years, Canada will work with First Nations to address the funding gap for First Nation water systems. We are awaiting response on those clarifications at this point.

Senator Patterson: Thank you.

The Deputy Chair: Are there any further comments?

Thank you, Chief Weaselhead, for your very clear presentation. You have made it very clear that you support the bill with two very strong conditions, one dealing with reaching an agreement on an adequately funded joint process for the development of the regulations, and the second is ensuring that significant resources and a proper amount of resources are there so you actually end up with the infrastructure in order to provide safe drinking water.

I thank you very much for that.

Honourable senators, thank you for your questions. We will now suspend for five minutes to clear the room for an in-camera discussion.

(The committee continued in camera.)

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