THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
EVIDENCE
OTTAWA, Friday, June 3, 2022
The Standing Senate Committee on Aboriginal Peoples met with videoconference this day at 11 a.m. [ET] to study the subject matter of those elements contained in Divisions 2 and 3 of Part 5 of Bill C-19, An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures.
Senator Brian Francis (Chair) in the chair.
[English]
The Chair: I’d like to begin by acknowledging that the Senate of Canada is situated in the traditional unceded territory of the Algonquin Anishinaabeg people. However, since this meeting is hybrid, senators are conducting their work from the traditional territories of many nations.
I am Mi’kmaq senator, Brian Francis, currently in Epekwitk, also known as Prince Edward Island, and I am the Chair of the Aboriginal Peoples Committee.
Before we begin our meeting, I would like to introduce the members of the committee who are participating today: Senator Arnot from Saskatchewan; Senator Busson from British Columbia; Senator Miville-Dechêne from Quebec; Senator Pate from Ontario; Senator Patterson from Nunavut; and Senator Sorensen from Alberta.
I would like to remind Senators and witnesses joining remotely to keep their microphones muted at all times unless recognized. Should any technical challenges arise, please let me know.
I would also like to remind everyone that the Zoom screen should not be copied, recorded or photographed. However, official proceedings can be shared via the SenVu website.
Before we begin the meeting, I would like to note that today marks the third anniversary of the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, containing 231 calls for justice. Let’s honour all those who died or disappeared and reflect on the sorrow and the strength of the survivors, families and others who took part in the process and are still waiting for tangible changes. Today we stand with you, and we hear you loud and clear.
The Aboriginal Peoples Committee recently heard from the former commissioners of the national inquiry, including Senator Audette, as well as individuals impacted by this crisis. We will be issuing an interim report with recommendations based on this evidence.
We have also committed to undertake a targeted study in the fall focused on advancing greater transparency and accountability. Decisive action from all levels is needed to tackle the devastating crisis impacting Indigenous people and, in particular, women and girls as well as two-spirited and gender-diverse people. I am hopeful our committee will be able to assist with these efforts. Wela’lin and thank you.
Today we are here to resume our study on the subject matter of Bill C-19, the Budget Implementation Act. Specifically, we are focusing on Division 3 of Part 5, which repeals the Safe Drinking Water for First Nations Act, part of the settlement agreement involving First Nations who have been deprived of reliable access to drinking water on reserve.
Our first witness today is Chief Byron Louis from the Okanagan Indian Band. He will provide an opening statement, and then we will move to a question and answer session. Senators in the room who have a question should raise their hand. Those on Zoom should use the “raise-hand” feature, and you will be added to the list.
Chief Louis, if you are unable to answer a question or would like to provide additional information after the meeting, I invite you to send a response in writing to the clerk by Monday. I apologize for the short timeline, but we have to report back to the chamber by June 10.
Chief Louis, I invite you to begin your opening remarks.
Byron Louis, Chief, Okanagan Indian Band: Good morning. I’ll read a brief statement that was prepared.
The Okanagan Indian Band has fought for decades and continues to fight for the recognition of our nation’s Aboriginal title and Aboriginal rights to water. We have also fought for the recognition of the fact that because our reserves are situated in one of the most arid regions in Canada, our reserve land is meaningless unless a safe, clean and reliable supply of water is secured and protected. This is critical not only for the sustenance and health of our people but also to ensure that we have a strong and healthy economy.
For our people, ensuring a safe, clean and reliable supply of water has been one of the most important duties we’ve expected the Government of Canada to honour, and we have been deeply disappointed in Canada’s performance and its breach of its fiduciary duty.
That is the past. I’m here to speak of the future.
First, Okanagan Indian Band is happy to see that the Safe Drinking Water for First Nations Act is being repealed. This was a classic approach of governments past: Rather than genuinely dealing with issues facing our nations, they instead tried to legislate them away or transfer the burden to the nations. You will do well in advancing this legislation.
Second, the Okanagan Indian Band wants to remind you that it still has a claim outstanding against the Government of Canada for failing to ensure that we have a clean water supply and that our people’s basic human rights are respected. We are not part of the class-action suit and did not settle our claim. As we have said from the beginning, we have always been ready, willing and able to negotiate a resolution to this claim. Yet, to date, the Government of Canada has come forward with vague proposals and weak promises that do nothing to address the real crisis our community continues to face.
We hope that you can urge the Government of Canada to do right and come to us prepared and ready to negotiate and make right what has been wrong for decades.
Finally, I come to ask you to urge the Government of Canada to be creative in trying to find ways to work with our band and other nations. To fund getting work done, Indigenous Services Canada has worked within the constraints of policy that make it hard to get this type of infrastructure work done. Hundreds, if not thousands, of non-Indigenous people live in our Okanagan Reserve. They have the same need for clean, safe and reliable water as members of our band. We’re surrounded by communities such as Vernon and the Okanagan regional district who have water needs like ours.
The Okanagan Indian Band is working with other government agencies, has developed models that could allow us to serve the needs of all people and reduce the ultimate cost of infrastructure for everyone.
Involved in our greatest challenge are Indigenous Services Canada’s, or ISC’s, outdated policies. Rather than seeing what is possible, these policies focus entirely on limiting what cannot be done instead of being able to work closely with our neighbours and with experienced providers of public utilities.
We face hurdles coming from outdated funding policies. We need Canada to be creative, nimble and businesslike in recognizing the economic potential that can be unlocked if you look at us as partners who want to grow our economy rather than as wards or children.
I think one of the biggest problems with ISC and their outdated policies is that ISC only considers social issues based upon formulas that do not take into consideration the economic ability of infrastructure and other types of services to drive the means of generating wealth inside communities.
The other need is to look at the fact that in certain instances, infrastructure is an investment that is not an expenditure, and whatever is actually funded in certain ways and means can actually be returned to Canada in terms of increased tax revenue, job creation, all these other benefits to that.
We are one community that has similar experiences with the department, and even looking at the need for ISC and CIRNAC to start using the Statutory Instruments Act that calls for a cost-benefit analysis and combines that with the socio-economic analysis of that part of those regulations and assessment. I think it’s important because government functions on risk management. In terms of our people, that is not being done. Thank you.
The Chair: Thank you for your remarks, Chief Louis.
We will now begin the question and answer session, and I will start.
Chief Louis, the 2021 audit by the Office of the Auditor General of Canada found that funding provided to First Nations for the maintenance and operation of their waste water systems was insufficient. In your experience, what costs are excluded that are important to the operation and management of water and waste water systems in your community, and what challenges do you face in making up the funding shortfalls?
Mr. Louis: I think the biggest cost — the shortfalls and what is being spoken of — is the fact that when they’re looking at infrastructure, they never take into consideration the economic benefits or doing a proper cost-benefit analysis. A proper analysis would actually show the present formulas that identify the need for water on a reserve. Instead, it’s based upon population and limited projection growth. It does not take into account the economic benefit questions like, for example, if the land can be used for social and economic use.
Our band and our CP owners actually make use of the fact that we’re on about 37 kilometres of lakefront property in the Okanagan that goes for residential leases. What could be generated is never taken into consideration. We have other lands that can be used for industrial or recreational development. Again, this is not part of the process of determining the social and economic values or cost benefits of proper infrastructure.
The Chair: Thank you, Chief Louis. I remember when I was a First Nation chief, the funding formulas added up to about 75% of what Indigenous Services Canada, or ISC, would give us to run our water and waste water. We had to use our own sourced revenues or find other means to make up the other 25-30%. Is that your experience as well?
Mr. Louis: Exactly. One of the things they look at to cover the shortfall is taxation. Sometimes it’s a solution. Sometimes it’s not. I hear you on exactly what you said about those shortfalls, because where else are you going to get it? A lot of First Nations take resources from other programs to cover off the shortfalls, and it creates this vicious cycle. And then they wonder why these bands aren’t living within their budget. Well, that’s pretty hard to do when you’re trying to do this with the shortfall of 25%, more or less.
The Chair: Thank you for that.
Senator Arnot: Thank you, Chief Louis, for your presentation. I see this as an ongoing breach of fiduciary duty, an obligation by the federal government to your First Nation. It’s quite clear. I also see it as a breach of the principle of nation-to-nation relationship, and I’m sure you’re hopeful that you will have a cooperative, collaborative, positive and constructive relationship in the future.
As well, I am concerned that you had to initiate litigation to get anything out of the Crown — the federal government. I’m just wondering how many years you have been in that litigation. I don’t need the exact number, but you must have spent a lot of money initiating and carrying out the negotiations resulting in litigation. What are the costs, and over what period of time have you been forced to expend considerable— no doubt — monies?
Mr. Louis: It’s been considerable. If you’re looking at any type of court action, you’re going to be spending up to $200,000 or more. This is money that could actually go for, say, education, housing or other types of social or economic needs. But we find that the only way we can actually have constructive change or any other means is through the courts. It seems like the courts is the only body that actually gives us a fair hearing to address these issues.
So, yes, litigation is expensive. We have to litigate against the province. We have to litigate with the federal government. But this should not be the only means of providing for our members and our own people. This is something that needs to be addressed. It is not a government-to-government relationship, especially when you’re forced into litigation.
Senator Arnot: Thank you, Chief Louis. I appreciate those comments. They’re very helpful. Thank you.
Mr. Louis: Thank you.
Senator Patterson: Thank you, Chief Louis. The Safe Drinking Water for First Nations Act was passed in 2013. There were never any regulations made under the legislation, even though it gave authority to do so. You stated that you support the repeal of that bill, but I’m wondering where you would recommend we go from here. I know that Indigenous Services Canada has recently settled a class action on drinking water, and I understand your band was not part of that. However, they did say they would support First Nations in the development of safe drinking water bylaws.
I know there are funding formula problems that we need to address as well, but do you think there is a need for a legislative framework and bylaws in First Nations, and would you support developing those by your band?
Mr. Louis: It all depends, because in order for us to actually have a bylaw — the part of the bylaw that is the hardest component is the enforcement aspect. When you’re looking at bylaw development, how do you actually implement what you’re trying to achieve through legislation? I think it’s really important that if you’re looking for a means of implementing measures for safe drinking water, you can establish standards and legislate the use, but you also need the other component of how you’re going to actually ensure that it’s effective.
The current policy with ISC, and in particular with Crown-Indigenous Relations and Northern Affairs Canada, or CIRNAC, provides only the social use. It does not provide for the economical use that could, in fact, support a larger or more robust system that meets the needs of the community.
I think it’s very important to go toward being able to have your community’s needs met. I hope that answers the question.
Senator Patterson: Are you saying that ISC needs to change its funding policies?
Mr. Louis: Absolutely. I often think that the present tools are not being used because we all know that government runs on risk management or risk aversion or whatever you want to call that. One of the primary tools of doing this is Statutory Instruments Act, and what this calls for is to do a cost-benefit analysis of the implementation of any statutory instrument.
In this regard, when you look at how this is being done on First Nations, again, it only takes into account the social issues — the number of people, future growth — but it doesn’t take into consideration what the economic benefits or costs are of not having proper infrastructure that facilitates economic development.
Senator Patterson: Thank you.
Senator Miville-Dechêne: Chief Byron Louis, I would like to follow up on the question of Senator Patterson. Do you think the fact that you’re still in litigation prevents you from a settlement? Do you think you could be excluded from a settlement? Tell me how you see this relationship with future ameliorations of the water situation.
Second, to follow on Senator Patterson’s question, what do you want exactly? Do you want to supervise? Do you want to have full power on the water infrastructure that will be installed and hire who you think could do it? How do you see that? Obviously, you’re in the best position to know your needs. You just said that. You want economic development. I understand this law is not enough. The previous law is repealed. What, exactly, do you want? How do you want to function? And, on the first question I asked, how could the lawsuit could have an impact on the future?
Mr. Louis: I think it’s involving First Nations in the entire development or in finding solutions. You’re starting to see other types of needs for infrastructure being met, what they call through public-private-community partnerships, that allows for looking for investment from either private equity or other types of sources to develop systems.
If you look at what’s happening with some of the spending — $26 billion on COVID alone for two years — how much will be available for these types of initiatives, especially infrastructure?
We need to start looking outside of the box. What are the solutions out there? Can it be met not only with support from the federal government but also from provincial sources and from the private sector? At a lot of equity funds and others look at infrastructure as a means of investment. It may not be one of the highest earners, but it’s steady. They look at starting to invest. Right now, we’re working in partnership with EPCOR and looking for solutions that could meet our needs not only for water but also for waste water and other utilities that could come in there. If we are successful, we, as the Okanagan band, could be the first majority First Nation-owned utility in Canada.
This involves looking at solutions outside of the box. It’s very hard to get governments to think along those terms, but they probably provide the best means of providing for our First Nations communities in Canada.
Senator Miville-Dechêne: Thank you.
Senator Busson: Thank you very much, Chief Louis. I’m coming to you today from an area near Salmon Arm which is the traditional unceded territory of the Shuswap people. I am familiar with the area where your band is located. As you mentioned, it’s on the waterfront in the South Okanagan region of British Columbia. It’s somewhat ironic that we’re talking about water issues but I know the area and I understand.
I hear the frustration in your voice. I think your answer to Senator Miville-Dechêne more or less covered it, but you mentioned your frustration about the government wanting to deal more with social issues and not dealing with the issues of investment in infrastructure.
Could you tell this committee what that would specifically look like for your band? I think you covered it when you talked about the investment as more than just talking about remediation but investment in infrastructure with returns. Could you talk about that a bit more for us, please?
The Chair: Did you hear Senator Busson’s question?
Mr. Louis: No, I didn’t.
The Chair: Senator Busson, could you repeat that, please?
Senator Busson: I wanted to thank you, Chief Louis, for being here today and mentioned that I am situated north of you on the Shuswap territory. I live near Salmon Arm, British Columbia, and I understand your location. You mentioned your band is located on lakefront property with access to fresh water.
I also heard the frustration when you talked about the fact that you think the funding is focused on social issues rather than on investment in infrastructure specifically to your reserve. The answer you gave to Senator Miville-Dechêne touched on it but could you give us some details about what would that investment in infrastructure look like at your location with your band, please?
Mr. Louis: Thank you. When we’re looking at infrastructure needs, it’s not only with the immediate needs of our community but what could actually be done with the lands that are situated along Okanagan Lake that has some of the highest value real estate in all of Western Canada. Also, the ability to actually look at that in terms of investment, being able to provide water, waste water protection along the lake and to recreational leases, but to both commercial and residential developments.
That is substantial. I think it’s incumbent to do a full socio-economic study that actually determines the best size of infrastructure, like in pipe size and systems that would be required to serve that. If we’re able to conduct these studies and look at the ability to have that type of investment — whether it’s from private or public, or from our own-source revenue — it would allow us to get the highest and best use of our lands.
I’m glad that you mentioned our community. I was once introduced by the regional manager for Western Canada of the Bank of Montreal. He introduced me and said, “I would like to introduce you to a chief whose community is sitting on $1.5 billion worth of real estate.” You’ll never get that unless you have the actual infrastructure in place to ensure that you have the highest level of development possible. This is a benefit to all of Canada, not just First Nations.
For instance, look at the Westbank First Nation. They were able to add $1.1 billion investment in their community but now probably provide $120 million for tax benefits not only to the federal government but also to the provincial government. They said about $70 million of that goes to provincial and the remainder to the federal government. When you look at that in terms of benefit, it is an investment, not a cost.
Senator Busson: Thank you. I really appreciate the answer to your particular issue. I’m glad we had a chance to raise it.
Mr. Louis: Thank you.
Senator Pate: I apologize, Chief Louis, if I missed this. I was tardy coming from another meeting.
I know you mentioned the infrastructure costs and the vital importance of making sure there is coverage there, but I’m curious as to whether you’ve looked at the impacts of not having clean water supply and unsafe water in terms of health care and the other issues related to that. There is the economic cost but there is also the social and human cost to those issues. Can you comment on that, please?
Mr. Louis: One of the issues that we have in the Okanagan band is one of our systems is situated in what we call the northern end of our community, at the lake. This system is where the well has a high manganese content.
We were told that if the standards were changed that this water would be coming out of those sources as undrinkable. If you go into looking at some of the studies, the ones most impacted by that are infants and small children.
So when you look at such things as, say, potable water, it’s not only the fact that this water is unsafe, but what are the accumulated effects of that on future health? If we’re looking at First Nations, youth are 51% of our population. However, some statistics say that future workforces, which we’re entering right now, could be comprised of up to 15 to 20% of Indigenous peoples. What is the impact on the economy right across this country of not providing safe opportunities and where the health issue of safe water becomes something that adds to the burden as people are unable to work or unable to contribute? That has an economic cost, and that’s not even factoring in what the health care costs are. Just the productivity can be quite high.
Senator Pate: Thank you very much.
The Chair: Chief Louis, I see the lack of access to water on reserves as an example of systemic and institutional racism that deprives our peoples of basic dignity and rights. Is that also a view you share, and if so, what does the failure to resolve the crisis mean in terms of rebuilding relationships with the Crown?
Mr. Louis: I would agree 100% with that comment. One of the factors of this issue of lack of water is that not only is this a human rights impact but it also shows that we are not considered as being partners in the development of this country, regardless of the fact that we were partners in the development for the last 500 years. It is only in the last 50-odd years that this has slowly changed. If you look at the amount of what is being contributed by Indigenous peoples, it’s considerable.
I think the last study was looking at $26 billion. There are studies now coming out that say it could be up to $100 billion by the end of the decade. You’re talking about a substantial contribution to the Canadian economy and the health, wealth and prosperity of this country. Why are we not getting the support that is required? Why are we looked at as being a burden when we are actually an asset? That has to change.
The Chair: Very good point, Chief Louis. Thank you very much for that.
Senator Pate: Chief Louis, I would like to provide you an opportunity to expand further if you’d like. The issue of the links between unclean water and learning outcomes, educational outcomes, as well as you’ve mentioned employment outcomes, can be significant. Is there anything further you would like to add in either of those regards?
Mr. Louis: Yes. Again, it’s a myopic view of government — it doesn’t matter if it’s federal or provincial — that looks upon First Nations as being a burden or an expenditure or something other. If you actually looked at infrastructure, in particular in the Okanagan Valley and our community in general, you would see that surrounding our community is a very strong fruit industry and agricultural land base. At the same time the provincial and federal governments are not providing social and economic opportunities through infrastructure, it’s a clear case of the statement of cutting off your nose to spite your face. Think of each one of these developments on reserves with literally thousands of acres of agricultural land that could have been put into fruits or other types of benefits.
First off, you’ve got to put that into a registered lease. Once a registered lease is in place, that means it is taxable. If it’s an orchard or others, that would have been taxable. The produce coming off there is also taxable, and if you look at the incomes generated, and if they’re non-First Nations, which a lot of people would have been, that would have been taxable. This could have been done as early as the 1940s. Think of the hundreds of millions of dollars that were forgone by the provincial and federal governments by failing to recognize us, basically, as an asset as opposed to a burden.
It’s not only to our own people, but to think of that just in terms of tax benefits alone is incredible. Look at the 633 bands across Canada. How many are in the same boat as us? If you actually looked at a type of study, you would find that the loss of revenue, not only for First Nations and other peoples but for Canada as a whole, is measured in the billions in this time frame, and it has to stop. We need to start looking at Indigenous peoples across this country as a benefit and a contributor to the economy as opposed to being a liability and burden.
Senator Pate: Thank you.
Senator Patterson: I paid great attention to your recommendation, Chief Louis, that there’s a role for the private sector and other partnerships, 3P partnerships, in developing water and infrastructure. In some tours I’ve made with the committee, we did find that First Nations — and I believe yours is in that category — adjacent to municipalities sometimes could, sometimes, secure partnerships with municipalities to develop common water systems. Could you tell us whether you’ve been able to initiate discussions with neighbouring municipalities about achieving economies of scale and shared costs in developing the water infrastructure that you need?
Mr. Louis: Yes, we already entered into a form of partnership with the Regional District of North Okanagan, and this is to look at putting in waste water treatment that could serve one of our smaller satellite reserves. It could open that up for economic development of close to 70 acres, and in the Okanagan that’s considerable. We’ve approached them. There have been different types of funding applications, and it’s moving ahead in certain regards, but that shows there is a potential benefit of working with neighbouring municipalities and regional districts. There needs to be more attention paid to this, and this can serve not only for social needs but also for environmental protection because one of the factors, especially in the Okanagan, is the use of septic systems and others as opposed to facilities that actually treat waste.
I’ll give you a quick example. If you were to pour a cup of water into Okanagan Lake, it takes 99 years before it leaves the lake system through the Okanagan River in the south, so the turnover is very low. Environmental and cumulative impacts to the environment are considerable.
Senator Patterson: So you’d like to see this support that kind of a partnership with an adjacent municipality that you’ve described for your band, if it’s available. I’m wondering, have they been supportive?
Mr. Louis: I would say yes. The regional districts and local municipalities have been very good in terms of cooperation and looking at how we can work together. That’s been very good. That’s one of the recommendations I’d be making to the standing committee. One of the real breakthroughs with the current Liberal government was to include in their mandates and mandate letters — say Infrastructure Canada, Agriculture and Agri-Food Canada all the rest — the importance of First Nations partnerships. That provides us access to other ministries that specialize in that.
The problem with ISC is that everybody thinks that CIRNAC can solve all of our problems, but the fact is that CIRNAC and ISC are small with limited funding every year for 633 bands. So you end up with a little being spread out; it doesn’t end up amounting to a whole lot in terms of creating real social and economic opportunity.
If anything, it’s the increased access to the other federal ministries that can actually support within their mandates and the ability to help First Nations meet their social and economic aspirations. Those are things we really need to concentrate on — not putting more emphasis on ISC but spreading that out through the other federal family. That’s where we’re going to make that progress.
Senator Patterson: That’s very helpful, thank you.
The Chair: Chief Louis, I wonder if you could comment a little more about water scarcity and the future of water supplies in your region as things currently stand.
Mr. Louis: When you look at the Okanagan, what really makes this system unique — and a lot of people have this vision of the Okanagan Valley as being like California or something. In reality, it’s a long narrow valley that happens to have a lake in it in an area that’s in a transition zone, from the south end of the valley, which is on the northern tip of the great Sonoran Desert that extends from northern Mexico to just above Osoyoos into a transitional zone above that. That amounts to about 34 creeks and streams that flow into Okanagan Lake, and there are no major rivers that flow into there.
With the other thing, you have the annual snowpacks that also filter in through the groundwater. But the other limiting factor of that is that it’s been heavily dammed and managed. So now the Okanagan system is no longer a lake; it’s a reservoir. It’s operated within a little over a metre and a half, and that’s from low water to full pool. That does not allow you a whole lot of opportunities for storage.
The only place that you can actually look for increased supply of water is the uplands. That means that what is going to be required in the future is possibly looking at damming, storage and increased use of that. But when you’re talking about the Okanagan — and to put this into perspective, if all sources of water suddenly stopped in the Okanagan basin, there’s about a nine-year supply in Okanagan Lake itself.
You’re talking about a very limited ecosystem in terms of water, but you have an increased volume of use, whether it’s for urban, commercial, agriculture or all of the above.
So water is king when you’re talking about the Okanagan.
The Chair: Thank you for that.
What would you expect ISC to include in future legislation that would make all this work, particularly for your region?
Mr. Louis: There has to be enabling aspects in any type of future legislation that allow us to access other federal sources, but it’s also about looking at how to be facilitated to reach out to the provinces to utilize resources and a tax base based on section 92. But why are we the only ones who can’t access our own resources?
Like the former chief of Attawapiskat said, “We have all we need to address our needs.” What she was emphasizing were the resources in their backyard. If we had full access to our resources, we wouldn’t have to always be coming to ISC with our cap in our hand for something that every other Canadian takes for granted. And think of the trillion dollars; if I understand correctly, a trillion dollars is generated from resources. Even based upon 4%, that’s $36 billion that should even come to Indigenous peoples, based upon our per capita of the Canadian population. Why was it held at $10 billion for how many years? Those are our resources that are building the prosperity of this country. Why don’t we have the same level of access to it as everyone else?
The Chair: Thank you for that, Chief Louis. I don’t see any other hands, raised. Chief Louis, do you have any closing remarks you would like to make?
Mr. Louis: If at all possible, I would like for the Standing Senate Committee on Aboriginal Peoples to actually look at the Statutory Instruments Act and its applications. The Statutory Instruments Act is a tool of risk management, and it’s not properly including the economic component in terms of looking at how a statutory instrument, as it relates to the Indian Act and others, is going to be used. What are the social and economic impacts of that? It’s really important we look at that, because the right information isn’t coming back to the government and other authorities to actually make informed decisions that impact Indigenous peoples to this day.
We really need to start looking at the tools of decision-making within government.
The Chair: Thank you very much for that, Chief Louis, and thank you for your testimony today. We appreciate it.
I will welcome our second witness in a moment, but I want to remind everyone that we are discussing Division 3 of Part 5 of the Budget Implementation Act, which repeals the Safe Drinking Water for First Nations Act part of the settlement agreement. I’d now like to introduce Chief Wilbert Marshall from Potlotek First Nation. He’ll have up to five minutes to deliver opening remarks, and then we’ll move to questions and answers. I remind senators in the room who have a question to raise their hand. Those on Zoom should use the “raise-hand” feature to be added to the list.
Chief Marshall, if you’re unable to answer a question or would like to provide additional information after the meeting, I invite you to send a response in writing to the clerk on Monday. I apologize for the short timeline, but we have to report back to the chamber by June 10th.
Chief Marshall, I invite you to begin your opening remarks.
Wilbert Marshall, Chief, Potlotek First Nation: It is nice to be here, senators. Thank you for inviting me.
I am here on behalf of my community. I’m also the Chair of the Atlantic First Nations Water Authority, or AFNWA. We have come a long way from our water being all bad — our water is good now. But we had a struggle since 1972 or 1974, when we had bad water. Anyway, we started the water authority a few years ago. We are still in the building phase, but it’s well under way, though.
The Chair: Your opening remarks are complete?
Mr. Marshall: Yes.
The Chair: Thank you, I appreciate that.
We’ll now begin the question-and-answer portion of our meeting. The floor is open.
Senator Patterson: Thank you, Chief Marshall. You described how you managed to improve your water system.
I wonder if you could elaborate and tell us how that happened and what made it possible for you to achieve that, please.
Mr. Marshall: A few years back, and this is going back many years when my cousin, Lindsay Marshall, was chief. We had no water treatment centre. It was a filtration system. But we found out later on, it was never meant to be, to have an elaborate system like we had. The water was too — we had a high magnesium and iron in our water. So we ended up getting a DAF system instead.
Yes. As I was saying earlier about the water, we had a struggle with our water since 1972, 1974. I remember when I was a little kid — well, younger anyway. I guess I was four years old back then. We always had a problem with our water. We tried fixing it a few years back in 19 — when was that? 1998-99. We had a new water system, but way back then they put the wrong system in. Maybe five years down the road we started having problems with this.
It was costing us $200,000, $300,000 to fix the problem every time we had to change a filter; it was supposed to last for 15 years, but it didn’t. It was less than five years that we had to replace the filters. It came to me. At the end, it had just failed us.
When you guys saw the pictures, I know you guys and everybody is familiar with our water, or not, but it was black. The water was just pretty well black. That continued on for many, many years like that until we finally — and it hit the news, I guess. I started talking to the government. We ended up getting a new system here. It’s a DAF system, they called it. But then DAF didn’t — we started talking to Mr. John Paul from the APC. A senator was also there. He was part of it way back then. I think he remembers me talking about it a few times.
The water was deplorable. It wasn’t fit to drink. You couldn’t wash your clothes in there. Everything turned black. Nothing. Anything, it was ruined. Anything to do with metal. All the coppers, we found out later on; it ate all the copper pipes out. We had to change all the copper pipes to plastic. Hot water tanks wouldn’t last. People that took care of their homes. There were some people here really into their homes. They had the solar panels and all that. That just ate away at the — the water ate the pipes out. It started leaking everywhere. It was one thing after another.
If anybody could learn a lesson, take it from us. We are willing to share anything. That’s why we formed the water authority.
The Chair: Thank you for that.
Senator Patterson: Chief, if I may ask you, what is the lesson that we need to learn from your experience?
Mr. Marshall: Let the community decide. Before we were letting these engineers come in and they’re deciding on our fate. This time we had proper engineers. We did our homework this time.
Actually, the engineers that were doing it, they consulted with this other guy. So we took the middleman out right from the start. We went to the engineer they were dealing with, same with INAC also. I know they have people in there.
One guy came one day and said, well, that was the wrong one to begin with. Well, it wasn’t my department. You guys signed it off. Again, I said, you know what? If you knew there was a screw-up in the beginning, why would you sign this off? Anyway, I couldn’t really say anything to it after that. That is the truth, right? Today, our water is pretty good.
Senator Patterson: Thank you very much.
The Chair: Thank you, Chief Marshall. I’m going to go to Senator Miville-Dechêne in a moment, but I have a question before I do that, Chief Marshall.
The Safe Drinking Water for First Nations Act, which came into force in 2013, enabled the development of federal regulations with respect to the provision of drinking water standards for water quality and disposal of waste water in First Nations communities. However, none were ever developed.
In your view, why has the federal government not worked with First Nations to develop and implement a regulatory framework for drinking water?
Mr. Marshall: I really think they think we’re not capable of it. Right now, we have more educated people in our communities, and especially experience — first-hand experience.
They did a lagoon system here for us a few years ago. They put a new lagoon system back in 2007-08, even prior; before that, they put in a lagoon system. There was a main man named, Allister Marshall; he was a real protege. He passed away. He said a lagoon system is the wrong one to put in your community. Anyway, I didn’t know until I got older, until now actually or a few years back.
Looking at it now, the lagoon system works. You need a brook for it to work. What happens is, after the lagoon system is all done, we have — what do you call it? Ultraviolet, a little building. Anyway, they put that building in the swamp area. It was never done right, I guess.
But the stuff you know now, that’s like the teachers. I guess they picked me to be the chair because we have first-hand experience. But right now, even with this system here, the water goes right into the brook.
Way back then, when I was a little kid, way back — I’m not that old for God’s sakes, but anyway — there used to be an abundance of fish go up there, such a smelts, and they stopped coming up there.
It was not that long ago until I talked to Shelley Denny; she is a band member here. I said Shelley, why is that? She said that’s one of the things they sacrifice if you have a lagoon system. The fish won’t come up anymore. That ruined our way of living. Our guys used to catch their fish in the brook — your lobster rock and all that — and use it for bait. Now the fish don’t go up there. I was wondering why. Then she explained it to me. I said, now I see why Allister Marshall was right against that.
But there’s a system right now. You get another filter that goes on the end, but I’m having a hard time getting the government to consult with me on that. We need another filter to fix that problem. There is a certain algae that’s growing in the brook now. I always say you can fool the people, but you can’t fool the fish. The fish have stopped running there. Maybe that’s one of the reasons they made me chair. We have so many bad experiences.
Senator Miville-Dechêne: Thank you, Chief Marshall. I want a few more details if you could. I want you to expand on this black water, which I find quite revolting. Can you tell me how many years you could not drink the water for? How did you manage? When you started to build the current system now, were you at the top of the decision-making in terms of who you hired and what they did? How much did the last system cost? How did you finance it at the time? Did you have grants, or did you have to take it out of your budget? I know that’s a lot of questions, but let’s start with the black water and why it was black. You talked about the copper pipes, but what was there inside that made it black?
Mr. Marshall: It was the reaction between the metal and the iron or manganese that’s in the water. Anything that was metal, like a hot water tank, just disintegrated. The houses were going off like sprinklers. Then, we had to fix all the plumbing and the water damage in the houses.
Senator Miville-Dechêne: How long did it last?
Mr. Marshall: That was on and off for many years from 1974. We didn’t know what was going on. We got the new system in 1998. It was supposed to fix everything, but it was the wrong system. It was a good system, but it was the wrong one for our climate. We have surface water on the lake, and we found out that’s the worst drinking water you can use.
The only thing wrong here is we don’t have enough wells. We drilled 60 wells. We tried and looked, and we didn’t have enough water. The water from some of the wells was worse than what we were drinking. We talked to engineers to see what the best remedy was. My council and staff did tours in the surrounding areas, like in Halifax and Cape Breton, to see what everyone was using. They were using dissolved air flotation, or DAF, systems, which uses nanofiltration. It was a good system, but it was an expensive system. Every time it broke down, we were changing the filters. The chief prior to me was talking about it, and we had to use our own money, our own-source revenue. Eventually, we got the money back, but it put a big strain on our finances here.
The back water happened every fall around the same time every year. We expected it. The worst thing was that Health Canada was telling us to boil it, and we found out, later down the road, in their own words, that it made it worse. All those years they made my people boil the water and drink it. And I wonder why the cancer rate here is so high.
I can show you a picture of my sink one day from when I came back from an Atlantic Policy Congress of First Nations Chiefs Secretariat, or APC, meeting. I came home and said, “We have no water here. Well, we have water but it’s black.” I can show you the pictures. It’s straight from my tap. It’s black coming right out of the tap. That’s when I called Health Canada, and they put a boil order on there. Then, I found out later on it only makes it worse to boil it.
Senator Miville-Dechêne: Thank you. I’m just so sorry for all those years.
Mr. Marshall: Is there another part of your question you need answered? Good.
The Chair: Chief Marshall, I wonder if you can tell me: Have First Nations in Atlantic Canada been involved in the development of their own regulatory framework?
Mr. Marshall: Yes. That’s what we’re doing here with the water authority right now. We are in the midst of it. We’re the first of its kind in Canada right now, the water authority, which I’m also the chair of. It’s good because we have the experience. I always share the story with everybody, and I always talk about it freely to anyone who wants to know. We hired a retired guy from Halifax Water, Carl Yates. He’s the head guy for our water. Pretty soon, he will be leaving us, and we’ll be looking for other people in the community who also have expertise. We can’t wait, but we have everybody collaborating. That’s how it works.
We found out later from APC studies that the amount we’re paying our guys hasn’t changed in the last 15 or 20 years — You should know this, senator. You’re in the same situation — The amount of money has never changed. It’s always the same. You guys have the Halifax water authority and all those places. They get all these big bucks, highly paid guys and all the machinery that we don’t.
Over here, we’re having a hard time with our sewer trucks. The guy doesn’t come here until three or four days later, and the sewer is overflowing. It’s going into the lake over at the brook. I’m trying to get money for a sewer truck right now, because we need our own. We’re always the last. They don’t see it that way, but we’re always last on the list to come. This has been going on for many years with the water authorities. All the communities are working together.
Even with St. Peter’s, I don’t mind working with them. It’s not their fault, but we work with closely with the other communities. That’s just what First Nations do. Right now, my heart is with the First Nations, and that’s what we’re trying to do through the Atlantic. I think it’s a good thing. We had a problem here not that long ago. One of our guys got sick, and they brought another guy in from somewhere. Before, it was never like that. I’ll give you an example. The guys are trained there so he had to bring his son in, and he doesn’t have any know-how. You’re messing around with a multimillion-dollar system here, flicking buttons. That’s not good. We’ll have something like Walkerton. Another thing is getting the proper training. That’s what we went through.
The Chair: Chief Marshall, do you see the Atlantic First Nations Water Authority being a key way of moving forward Atlantic First Nations and of supplying clean, safe and reliable drinking water to the First Nations that participate in this process?
Mr. Marshall: Yes, it definitely is. I had a hard time getting the council to go with the water authority, and I’m the chair. It took a while to sign off on it. After that incident happened, though, it opened their eyes to see what I saw. It’s a good thing to get the communities together. They’re the experts. You don’t want the wrong person switching on the wrong switch, saying, “What’s this for?” The next thing you know, you have a mess on your hard.
The Chair: Thank you, Chief Marshall.
Senator Pate: Thank you, Chief Marshall, for joining us and providing very clear and graphic examples of the issues we’re dealing with.
You mentioned a number of cancers in your community. Along those lines, I’m curious if you have information that you could share with us about other health concerns that have arisen as a result of the lack of clean water in your community, as well as other concerns about how that contributed potentially to learning outcomes or employment and other openings for young people. You’ve mentioned a bit about the fishing and access to clean drinking water, but if you can expand on any of those, that would be extremely helpful.
Mr. Marshall: We have a very high cancer rate here in my community. My family died young too. The cancer rate is so high here. My dad has cancer. My sisters have cancer. My cousins, my uncles, my grandfather. The list goes on and on. It’s unbelievable. Young people too. My niece is only in her twenties. She has cancer. And kids. All these years we’ve been drinking this water, telling us to boil it, and we didn’t know. God knows what the effects are. We never did a study.
What was the other part of your question?
Senator Pate: Actually, I was curious. I don’t understand what that is. How does the boiling make it worse? Have there been medical reports done that perhaps could be shared with us?
Mr. Marshall: We never did. I talked to the other chiefs. Chief Andrea Paul from Pictou said that it’s a very hard thing to prove, but they had the pulp plant there. She said they put you through so much stuff it’s not even worth it sometimes. So I shied away from it, but I know there is a high cancer rate here in the community. It’s crazy. It’s very high for a small community. Every second or third person has cancer. It’s high. It’s unbelievable. Even myself, I hate to say it, but I’ll probably get cancer. It’s just so high.
But the water you talked about turning black, that was from the doctor; I forget his name. That’s the guy who told me. It only made it worse. I said: “Why would you tell us to drink the water all these years? You’re making us drink it. You told us to boil it, and you knew it was wrong.” They knew about it, and all those years they made us drink it. Like many years, since 1974 or 1972, all those years they made us drink the water, and they knew it was bad for our health.
It made it a hundred times more than the average — I forget what it was, but it was sickening anyway.
Senator Pate: If there is any information like that, I think there has probably been some, because in Cape Breton, they compared the health outcomes after they cleaned up the tar ponds.
Mr. Marshall: The tar ponds, yes.
Senator Pate: Thank you for that. If there is anything that would be great.
Mr. Marshall: I would show you pictures. I have them on my phone, but I don’t know how to download to show you guys to see for yourself what we went through. Straight out of my tap, like black. A picture is worth a thousand words. If I could share it with you guys, but I’m not computer savvy with this stuff.
Senator Pate: Can you send copies to our clerk?
Mr. Marshall: I’ll send it to Ms. Andrea Mugny. I think it was on CBC, all that stuff. There was a girl there running the bathtub for her kids. The water was black. At the end of it, you couldn’t shower, you couldn’t bathe or wash or wash clothes — nothing. It got so bad. It was like that for many years but no one believed us until it hit the news.
I know what people go through when they say, “Water is life.” Water is life. But if you drink black water, it kills off your people.
And like you have with the fish earlier: that’s not a word of a lie. The fish stopped coming up the brook. Now our guys have to go to another brook, and then you get the DFO and all those people after them. Now they are going to get charged because it is not in our community. My kids missed out on that stuff. They can’t go fishing in the brook in our community anymore. I said don’t go into the brook. There is a certain algae that grows in there and when the fish eat it, they die. We’re trying to clean that off right now.
I’m trying to get the filter for the lagoon system. Hopefully, they’ll okay that soon; I hope sooner than later.
Senator Pate: When you say “they,” who has to do that for you?
Mr. Marshall: CIRNAC. I have been on them for a while now.
Senator Pate: Are there any applications for those that you could share with us, so the committee is aware of that?
Mr. Marshall: I don’t think they believe me — not this committee here, but the government itself. But I don’t know what else to tell them. I’ve been talking about this for a while now, but hopefully by being here our voice will be heard more. And this is real life. This is happening right now and not just in my community.
The lagoon systems are bad for the community. If you have another filter on there, we have to know how. We know the technology now. I know which filter to get — but even try it out to see how it works. I think it works myself. There was a fellow from Scotland who came down when we had a water problem here, and they put this filter on the end of the thing. And they came down for free of charge. Back then there was a patent pending yet, but now it’s all patented. It was good for anything. The pharmaceutical companies use it in Europe and all that. It’s just a tank that comes in a box. It depends on what size system you’re working with, the filters.
I really believe they’re a help, and I hope we get that filter here sooner than later.
Senator Pate: It sounds like you’ve made a number of applications to the federal government. Are there copies that you could provide to us?
Mr. Marshall: I probably can, yes. Whatever information I have, I’m going to share with you guys.
Senator Pate: That would be great. Thank you for all your work in your community.
The Chair: Thank you, Senator Pate. And, yes, Chief Marshall, anything you can share with us, send it to our clerk, Ms. Andrea Mugny.
I’m wondering, Chief Marshall, whether you would agree that the access to clean water on reserves is an example of systemic and institutional racism that continues to deprive our people of basic dignity and rights. What message is Canada sending when First Nations continue to lack services that others take for granted?
Mr. Marshall: For sure. I think what happened before, the First Nations were always taught — they always looked down on us. But now, as I said before, we have the education now. We have educated people in our communities now. My oldest son is a medical doctor. Kids grow up, and we depend on them now.
I just don’t want them to make the same mistakes we made. We have you now, senator. That’s another good thing for us. We have people in the government listening. I’m glad I’m here today first-hand, and I hope our kids will learn and our future young leaders in the future will look at this.
For sure, though, it was systemic racism that was happening, but now we are the leaders on our own. That’s where I want to be, anyway.
The Chair: Thank you for that, Chief Marshall. Are there other questions for Chief Marshall?
I’m not seeing any hands raised.
Chief Marshall, do you have any closing remarks you want to make?
Mr. Marshall: Yes. The water authority is across the Atlantic now, which is good. We have a bunch of communities signed off on it now. That’s the First Nations working with each other.
I’m able to go a step further. Like the next-door neighbours to us also, some of them suffer just as much. But the First Nations, especially. I’m hoping to get this fixed sooner than later.
I know these things are good for our communities and our people, and if you need anything for me to talk about, I’m here for you guys.
The Chair: Thank you very much, Chief Marshall. We really appreciate that.
I just have a question on the water authority. How many First Nations are now part of the Atlantic water authority?
Mr. Marshall: I think there’s 18, but it might be 22; I’m not sure. It’s growing. It’s really catching on now.
The Chair: That’s a pretty good number. That’s over half of the 34 First Nations.
Mr. Marshall: It’s getting up there. We’re supplying trucks. The guys are getting paid what they should be paid. They have the expertise with the system, and they have the guys in my office right now. We have the right thing. We don’t want them to make the same mistakes we made.
The Chair: You have proper wages, training and equipment to do the job properly?
Mr. Marshall: Proper engineers and that stuff. When we started our water thing here, we didn’t know much about it. We were going all over the place. Now the water authority will look after that. They have the expertise and you’re not guessing. You want the best practices. I think this is a big thing. All of Canada’s First Nations, we should have water authorities in all areas.
The Chair: Thank you very much for your testimony, Chief Marshall. Wela’lioq. This meeting is now adjourned.
Mr. Marshall: Wela’lioq.
(The committee adjourned.)