Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 17 - Evidence - February 8, 2011

OTTAWA, Tuesday, February 8, 2011

The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-11, An Act respecting the safety of drinking water on first nation lands, met this day at 9:30 a.m. to give consideration to the bill.

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


The Chair: I welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples. They will be watching on either CPAC or, possibly, the World Wide Web.

I am Senator St. Germain from British Columbia, and I have the honour and privilege of chairing this committee.

The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally. A number of reports have highlighted key challenges in the delivery of safe drinking water in First Nations communities, including aging water systems, certification and training of operators, lack of independent resources to fund system operations and maintenance properly, and the lack of clarity with regard to roles and responsibilities.

This morning, we continue our study of legislation designed to address this subject matter, Bill S-11, An Act respecting the safety of drinking water on first nation lands.

We will hear from three witnesses from two organizations: the Assembly of First Nations and the Chiefs of Ontario. Before hearing our witnesses, I will introduce the committee members who are with us this morning.

On my left, I have Senator Campbell, from British Columbia. On my right, I have Senator Poirier from New Brunswick. Next to her is Senator Stewart Olsen, also from New Brunswick. Next to Senator Stewart Olsen, I have Senator Patrick Brazeau, from the province of Quebec. Next to Senator Brazeau, I have Senator Ataullahjan, from Ontario. Next to Senator Ataullahjan, we have Senator Demers from Quebec, and last but definitely not least, Senator Raine from the great province of British Columbia.

Colleagues and members of the committee, please help me in welcoming our first witnesses. From the Assembly of First Nations, we have National Chief Shawn Atleo. Welcome.

You will introduce the people who are at the table with you, national chief. If you are ready, sir, you may commence with your presentation. I ask you to keep it as tight as possible so that we can have questions from senators and answers from our distinguished panel.

Shawn (A-in-chut) Atleo, National Chief, Assembly of First Nations: Thank you. Honourable senators, to my immediate right is David Nahwegahbow. He joins us as legal counsel. To his right is our director of infrastructure and housing, Irving Leblanc. Behind me, I also want to introduce with us today the Regional Chief of the Yukon, Eric Morris. I am pleased to have the regional chief with us today.

On our way here, chair and senators, the regional chief and I were talking and he shared with me how essential this topic is and how essential your focus is on it. We are pleased to be with you today. Thank you very much for inviting us to discuss with you how we might make this bill become an act to ensure safe drinking water in First Nations communities.

I will begin by saying that our approach has been to be open and positive in my relations with the government and positive in my relations with Parliament, and this committee in particular. This committee, after all, was instrumental in the development of the Specific Claims Tribunal Act, which I believe represented a major shift in policy and, if properly implemented, has the potential to be transformative.

I am hopeful this committee can bring the same energy, influence and progressive thinking to bear on this bill. As you know, my stated intention is to transform the current relationship between the Crown and First Nations into one that is not characterized by the paternalistic policies inherent in the current Indian Act.

However, it is not only about the Indian Act; it is about changing the relationship. Some have called it a paradigm shift. We are assisted by the United Nations Declaration on the Rights of Indigenous Peoples, which was recently endorsed by Canada. We applauded Canada's endorsement, but the endorsement must be more than lip service. Indeed, as set out in the declaration itself, it is a standard of achievement to be pursued in a spirit of partnership and respect.

The Assembly of First Nations is fully prepared to engage in this work, and we expect the Government of Canada, Parliament and this committee to join us in that work. If the declaration is to have meaningful impact, the governments then need to measure their current and proposed policies, legislation and conduct against the standards in the declaration, so I urge this committee to review Bill S-11 against the standards of the declaration.

I think you will find that, regrettably, the proposed legislation is infected with the age-old paternalistic policies inherent in the Indian act, but we have, in my view, an important opportunity to correct these flaws and to chart a new path forward based on recognition, collaboration and implementation, and focused on delivering real results.

I also want to acknowledge, and express appreciation for, the fact that the minister has signalled a willingness to work with First Nations to improve this bill.

Safe drinking water is a paramount concern for our communities, and we are mindful that a failure to address basic needs will forever inhibit and hold back the broader reform and change that is needed. When children and their families are not able to trust the drinking water, there is no safety or security. We have ambitious priorities in education, job creation and economic development, but all of these priorities require that we first take care of basic needs. Failing to meet basic needs robs the potential of our families and our communities. That underlines the importance of the work before us. The bottom line is that we must get it right.

I point out that our presentation here today is governed by clear direction. As a national advocacy body, our role is to bring together perspectives and to bring forward consensus.

This is not consultation. It is facilitation of constructive solutions to urgent problems.

In terms of what we are faced with today, we have 49 communities with high-risk drinking water systems. As of December 2010, there were still 117 communities with drinking water advisories. There is concern that this number is on an increasing trend, and that, of course, is completely unacceptable. It shows that the current approaches, despite good intentions, are not addressing the root problems.

I see the impact and reality behind these statistics every week, as I am privileged to travel in First Nations territories across the country. Only a few days ago, Chief Garrison Settee, who is Acting Grand Chief of Manitoba, came to my office and reminded me, and us, of the 1,000 homes in Northern Manitoba that are without running water right now.

In travelling through the country, chiefs and grand chiefs raised this issue with me constantly. I reference Grand Chief Ron Evans of the Assembly of Manitoba Chiefs, who is spearheading a campaign about the human right to water.

The elders and chiefs also reflect on the treaties and their knowledge that the ancestors advanced treaties as a means to create viable communities. A fundamental interest like drinking water would certainly have been part of the expectations on both sides in the treaty process.

I will outline the position of the Assembly of First Nations on Bill S-11. Overall, we have said that the bill in its current form is not acceptable. At our Special Chiefs Assembly held in December 2010, the chiefs adopted resolution 58, a copy of which is annexed to this presentation. The resolution states the position of AFN on Bill S-11 and speaks for itself. I will not review it in detail, but will highlight some of our main concerns with the bill.

There are three major items I will focus on.

The first is around the financial aspect. The Expert Panel on Safe Drinking Water for First Nations said the federal government must close the resource gap, and identified closing this gap as a precondition.

The rationale behind closing the resource gap bears repeating here this morning. First, and most critically, it is not credible to go forward with any regulatory regime without adequate capacity to satisfy the regulatory requirements. While it is tempting to assume that putting a regulatory regime in place will reduce the dangers associated with water systems, exactly the opposite might happen. Creating and enforcing a regulatory regime will take time, attention and money that might be better invested in systems, operators, management and governance.

The first major deficiency in Bill S-11 is the lack of financial provisions. The funds needed to ensure safe drinking water on First Nation lands fall into four categories. First is the new construction and upgrading of deficient facilities. Second is the operation and maintenance of existing equipment so as to ensure the longest possible life for facilities. Third is the training of operators and other staff, including Circuit Riders. Last are the routine expenses of operators, for example adequacy salaries, ongoing provision of Circuit Riders, backup operators, or other supernumerary staff for management oversight.

I understand — and I think it is important to point out this item — that Indian and Northern Affairs Canada said it will not be able to report on the National Assessment of Water and Wastewater Systems in First Nations Communities until spring. However, our understanding is that all the reports were completed as of January 31, and what is happening now is merely a compilation of the reports.

First Nations are anxious to see this information and do not understand why it is not made public, or at least provided to this committee for your study of the bill. I also understand that the minister is able to introduce financial provisions when the bill is before committee in the House of Commons. If we are able to construct a clear financial and implementation plan for this bill, we will arrive at first base towards an important solution here.

First Nations need clear assurance that the resources will be there to ensure that regulations and standards can be achieved. Without this assurance, First Nations have every reason to be fearful of, and reject, accepting the liability and responsibility due to the current state of infrastructure and with no guarantee of resources to remedy current problems.

Ensuring safe drinking water is a matter of addressing critical needs, but also an important governance matter. We must ensure that first Nations jurisdiction is respected, that effective coordination is in place, and that the regime is sustainable, stable and accountable.

In addition to the financial aspect, the second main area is the issue of consultation.

First Nations continue to feel that consultation has not been adequate. The Supreme Court has pointed to a requirement for meaningful consultation as in the Haida decision. Consultation always involves listening and being prepared to change your plans based on what you hear. The problem with Bill S-11 is that it does not reflect what INAC has heard from the expert panel or in the engagement sessions or from First Nations in any form. That is why First Nations say consultations have been a problem.

Insisting that INAC provide the national assessment and develop a financial plan will give us all an opportunity to fix the consultation problem. It will show that Canada has listened and reflected on the expert panel and the initial engagement process.

Third and last is the major area of Aboriginal and treaty rights. This area, the potential impact of Bill S-11 on Aboriginal and treaty rights, continues to be a major concern, as First Nations have expressed. In the bill, Canada appears to give itself the authority to determine the extent to which the Crown can abrogate and derogate Aboriginal and treaty rights, in direct contradiction to section 35 of the Constitution.

I will defer to David Nahwegahbow for some of those comments, who I will ask to speak immediately after me.

I will conclude this presentation by referring to the matter that I began with, namely the United Nations Declaration on the Rights of Indigenous Peoples. As you know, one of the central principles of the declaration is free, prior and informed consent. In the statements by federal officials to this committee on February 2, there was continual reference to collaboration with First Nations with regard to the development and enactment of proposed regulations.

However, if we look at the so-called enabling provisions, there is no reference to any collaboration with First Nations, let alone meeting the standards set out in the declaration of free, prior and informed consent. In fact, in those provisions, all the power and sole discretion is granted to the minister or the Governor-in-Council.

With all due respect, Bill S-11 looks to me to be more of the same paternalistic approaches that are contained in the Indian Act. This approach is also evident in subclause 6(1), which says that regulations may override First Nations laws and bylaws.

In my view, Bill S-11, in its current form, is a step backwards. Can the bill be fixed, and is the Assembly of First Nations prepared to assist in this regard? The AFN is willing to work with the minister in a manner consistent with our mandate to fix Bill S-11 and deliver real results for our people. Safe drinking water is a paramount concern, and one to which we bring our focused energy and attention to achieve resolution.

Are there amendments that this committee must consider in reviewing the bill? First, the financial resource issues need to be addressed through clear assurances and an implementation plan. Second, the principle of free, prior and informed consent must be reflected in the bill. Moreover, we need to introduce an approach of collaboration in the bill. Third, the infringements on Aboriginal and treaty rights must be completely eliminated from the bill.

Mr. Chair, I will turn now to Mr. Nahwegahbow to walk us through some of the constructive proposals that we are suggesting to the Government of Canada to advance our mutual interests of delivering safe drinking water to First Nations.

David Nahwegahbow, Senior Legal Counsel, Assembly of First Nations: Thank you, chair and honourable senators.

There are three areas with regard to the issues of Aboriginal and treaty rights that are problematic, potentially. The first is paragraph 4(1)(r), which allows the regulations to ``provide for the relationship between regulations and Aboriginal and treaty rights . . . including the extent to which the regulations may abrogate and derogate from those . . . rights.''

This paragraph appears to give unfettered discretion to the minister to derogate from Aboriginal and treaty rights. There is jurisprudence that is referred to, R v. Adams, indicating that, in light of the Crown's fiduciary obligation, such discretionary regimes are not constitutional.

It occurred to me, as I was studying this bill, that I had not seen anything this blatant before, which allows for the override of constitutional rights. The only thing similar that occurred to me was the ``notwithstanding'' clause in the Constitution. Of course, we know the significance and the controversy surrounding that constitutional override specifically provided for in the Constitution. In section 35 in the Constitution, no specific provision allows for the override of constitutionally entrenched rights.

This bill is a serious potential breach. Not only is it a direct legislative breach, but it allows discretion to a subordinate body — not to the legislators, but to a subordinate administrative body or executive body — to override constitutional rights which, according to section 52 of the Constitution, are supreme.

The second area is the extent to which the bill allows regulations, in situations of conflicting interpretations, to prevail potentially over comprehensive land claims agreements and self-government agreements. Again, the bill is overreaching, and according to section 35, such agreements, at least comprehensive land claims agreements, have constitutional effect.

The final area of Aboriginal and treaty rights that must be mentioned is the provision that allows regulations referentially to incorporate provincial statutory regimes, particularly in those provinces where statutory regimes may provide for water rights or allocation of rights. The provision may unwittingly allow the override of Aboriginal and treaty rights, again through regulations, where the provincial regimes may infringe on water rights.

The final point is that if any changes were to be made to this legislation to make it acceptable, and this is by way of example only, we would definitely want to ensure that those provisions that allow the override of Aboriginal treaty rights, because the provisions are clearly unconstitutional, are eliminated from the bill.

Finally, the national chief mentioned the notion of incorporating free, prior and informed consent. There are a number of places in the bill where the provisions are enabling, allowing either the minister or the Governor-in-Council to enact regulations with regard to drinking water.

I listened to the testimony from the witnesses from the departments of Indian and Northern Affairs Canada, Justice Canada and Health Canada. It seems to me that there should not be a problem, as these witnesses have indicated that these regulations will not be enacted without collaboration, to incorporate the notion of free, prior and informed consent into all those enabling provisions.

Again, a single provision can ensure that the exercise or the implementation of those regulations require free, prior and informed consent, or a clause can be included in each of those specific enabling provisions that says the regulations must be implemented or enacted with the free, prior and informed consent of the First Nation to which the regulations are to apply.

A number of other specific areas might require rectification in the bill. Those are only examples. I appreciate the opportunity to bring those items forward.

The Chair: Thank you, gentlemen, for your presentation.

With regard to paragraph 4(1)(r), did you have the opportunity to read the transcript of the evidence given by the bureaucrats from the department at our last meeting, where Mr. Salembier said:

. . . I will admit frankly an error was made in one of the late stages of drafting the bill and the word ``limiting'' was, by accident, dropped out.

He was referring to clause 4(1)(r).

In the French version, apparently the word ``limiter'' is there. That issue surfaced at the first hearings we had with the Department of Justice, INAC and Health Canada.

Mr. Nahwegahbow: Yes, Mr. chair, and, in fact, I watched the hearings. I do not think he was referring to clause 4(1) (r), because it is clear that what is intended there is the extent to which the regulations may abrogate and derogate. It is not a question of limiting. I think he was referring to the self-government provisions and the potential override of the comprehensive claims documents.

The Chair: My understanding is that it was in reference to clause 4(1)(r), because of the French version having used the word ``limiter.'' In any event, we will pursue that point.

The one positive thing was that there was an indication that an amendment was possible, which opens the door to dealing with some of the concerns that people have with regard to this legislation.

Senator Campbell: What engagement process at this point would satisfy the concerns of First Nations in this bill? What do you advocate as a proper way of engaging?

Mr. Nahwegahbow: The Assembly of First Nations resolution talks about a full engagement. It seems to me that time can be taken if it takes time for the people at the Department of Indian and Northern Affairs to complete their national assessment to decide what kind of fiscal assurances or fiscal implementation plan is required. If it means holding back this legislation until there are proper financial guarantees or fiscal plans, then it allows time for constructive engagement with the minister, the Department of Indian and Northern Affairs and First Nations. The department has always indicated there is a willingness to have that engagement. That is what is referred to in the resolution of the Assembly of First Nations, a copy of which apparently is attached.

Senator Campbell: I have that resolution. However, again, I always hear the term ``full engagement,'' and I have never had anyone able to tell me exactly what that term means. What is ``full engagement''?

Mr. Nahwegahbow: It is being able to sit down with officials from the Department of Indian and Northern Affairs and go through some of the issues that have been highlighted here and highlighted by leaders from other parts of country, again, with some willingness and intention that those engagements will be meaningful. That means being willing to rewrite some of the legislative proposals in a joint fashion, and then come back here with those proposals, with the assurance that they have the full support of the First Nation leadership.

Senator Campbell: My concern is that we have heard time and time again of First Nations communities with bad water or with no water, which is a position that is simply disgraceful for a country like Canada. While we are in this process of negotiations and discussions, how do we help those people in the interim? This situation could go on for years, and it is unacceptable. People are sick and could potentially die while we sit around here discussing ideas.

They are good ideas. I am not trying to say they are not. However, while we are sitting here discussing these fine points, nothing is being done. What can we do about that while we continue negotiations?

Mr. Atleo: If I may, I think the situation we have, the 1,000 homes in Northern Manitoba without clean drinking water right now, is a result of a long history of isolation and policy development not done jointly or in collaboration with First Nations. The system we have is built upon a system that is largely arbitrary in nature, without developing plans, certainly not jointly and based on the same data and the same information.

For example, we raised the issue today of the INAC reports that we have yet to see, or have the privilege of, that information.

This issue is about breaking a pattern and moving away from this notion that unilateral, externally imposed solutions are the answer. We have children whose families are going to the well every single day, and there is a sense of urgency around this matter. The government's important endorsement of the United Nations declaration suggests a new standard of real engagement, of collaborative development of regulations.

I think there is a shared concern about endless meetings that do not bring us to a solution. This approach must be one that develops that collaboration and results in real responsibility and authority in communities and regions. These sorts of solutions are required to place the responsibility closest to the ground where people can ensure that they are empowered and supported. That is why, in my presentation, I talked about the issue of First Nations governance and having that responsibility closest to where the people are and where the problems lie.

We must fix this problem. That is the reason why the chiefs, to their great credit, have encouraged us to be part of finding that solution with you today.

Senator Campbell: Thank you. I appreciate your answer. I understand the difficulties and complexities of this matter. I have been trying to think of ways to move forward at one level while we are discussing at another. I have not found a way of doing that, and I am not sure it is possible. I wish it were.

Mr. Nahwegahbow: I listened to the testimony from the departmental officials. They referred to a national assessment. I had the impression they were saying that it is not completed. My understanding is that the national assessment is completed and the department is simply compiling the documents or the studies and perhaps analyzing them.

I think it would make a lot of sense, if this committee is really concerned and wants to get to the bottom of the matter, to see those assessments. They will tell you exactly what the state of drinking water systems is across the country. I suggest you call those witnesses back to ask for a clear indication, ask them to bring their studies with them, and have a detailed look at those studies.

To solve those problems we need to rectify those systems. Passing regulations or statutes, as the expert panel has said, will not solve the problem. It will solve part of the problem eventually, but only after the resource issue is dealt with.

Senator Brazeau: Thank you for your presentations this morning, and for sharing some of your concerns about the bill before us.

As a First Nations person, I also have concerns about a few things I heard this morning. National chief, you talked about this piece of legislation being paternalistic and having had no consultation. You talked about infringements on Aboriginal and treaty rights.

The way I read this piece of legislation, I do not see it as paternalistic. If passed, this bill will give the opportunity for every First Nations community to develop regulations that reflect their own customs and traditions with respect to safe drinking water. Perhaps some provincial regulations will be incorporated. Who knows, maybe the regulations will be entirely First Nations. Therefore, I respectfully disagree that this bill is paternalistic.

On the issue of consultation, I have heard too many times, in my experience, that whenever First Nations people are not in agreement with a piece of legislation, they cite lack of consultation. The reality and the fact is that between 2006 and 2012, next year, approximately $2.6 billion will have been spent consulting and discussing with First Nations how to improve water quality on reserves. I am sure you will agree that, although not everything has been fixed, a lot of progress has been made over the last couple of years.

You talked about boil-water advisories. Sure, they may be high, but, to me, when I see those advisories, it shows at least that the water is being tested. The same applies to non-Aboriginal communities across the country as well; there are boil-water advisories all over the country. Those advisories are a positive sign that the water is being tested.

On the aspect of the infringement of Aboriginal and treaty rights, if there were a derogation of those rights, would that be done by the First Nations communities themselves, first, and do you see that happening?

My second question is, coming back to consultation, can you share with us the AFN position on what is adequate consultation? We often cite a lack of consultation or no consultation. What is enough?

Mr. Nahwegahbow: I will answer some of those questions. Senator Brazeau, there is certainly a potential for the regulatory regimes that are established to incorporate some element of custom. The problem is, there is no provision in the regulations to allow for any input. There is nothing specific in the regulation, in the statute, that allows for a collaborative role, let alone free, prior and informed consent.

The statute simply says ``the minister may'' or the ``Governor-in-Council may.'' If the government is serious about allowing some adaptation of those regulations for First Nations, then put in that provision. Why does it have to come down from above that ``the minister may,'' which is exactly how it is in the Indian Act? Why does it have to say ``the Governor-in-Council may''? Why does it not say, ``the Governor-in-Council may, with the consent of First Nations''? It is a simple and easy provision to add.

The definition of ``consultation'' has been given numerous times by the Supreme Court of Canada. If you have a good look at the Haida decision, there are examples there as to what consultation means. It needs to be meaningful. If you put a plan before the person you consult with, it means you should be prepared to change your plan to accommodate what the other person is telling you. There is a bit of common sense involved in that definition.

Consultation should be more than the old-time paternalistic attitude of ``I will talk to you and pretend this is consultation.'' Consultation needs to be more than pretend consultation. There needs to be a willingness to engage in a serious dialogue, which may eventually affect the outcome of the final product.

I am not sure if that answers all your questions.

Senator Brazeau: I guess, it does, in part. Here is my concern: We talked about 1,000 homes in Manitoba, individuals who do not have access to safe and clean drinking water. This situation is what this bill is about. It is about First Nations having access to just that, safe and clean drinking water.

I hear you talking about free, prior and informed consent. To me, that is procedural. However, how do we reach the point where First Nations people will have access to the safe and clean drinking water that they deserve? Again, if we are talking about lack of consultation, how long will it take before we have the consent of the 600-plus communities?

To me, the position is all procedural. It sounds good. It is a little bit of rhetoric. At the end of the day, we are talking about trying to give people access to safe clean drinking water, just as every other Canadian citizen enjoys across the country. To me, the position you put forward is that we are becoming bogged down on procedural issues, language and consultation when, in fact, there has been consultation.

When I talk to First Nations people, grassroots people living in communities all across the country, they are asking, ``Why has that not happened yesterday?'' We are hearing from different groups that they are ready to go with this legislation as it is.

However, the position that seems to be put on the table is that many changes need to be made. We can talk about resources, but the fact is, few pieces of legislation include resources in moving forward.

You talked about consultation in the Haida decision. I have read that decision 20 times over. I want to know from the AFN here this morning what constitutes enough consultation.

Mr. Atleo: I will offer up some thoughts on that question. I do not think there is necessarily a magic answer, especially here this morning. As I said at the outset, the Assembly of First Nations is an advocacy organization. Those who hold responsibility for giving effect to their treaty rights or Aboriginal title rights gather at our assemblies and they provide important guidance to the Assembly of First Nations. With that guidance, we sit down with the government and we propose, as we are doing here today, a concrete way forward to ensure that the bill creates a collaborative regulatory development system.

Senator, I hear you talking about the issue of process as well as the issue of consultation. Rather than having a discussion about either what constitutes consultation on the First Nations' side or how government interprets and applies the notion of consultation — which is, perhaps, choosing to speak to certain groups and suggesting that is consultation — we are here to focus on the need for clean drinking water right now in our communities. That is the interest of the Assembly of First Nations.

We are suggesting specific ways to fix this bill so the issue of process meets the real response to change and empowers communities at the same time. If they arrive concurrently, and if a good plan, well founded and well anchored in data and information that we all share an understanding about, meets the resources so that they are put to good, effective and accountable use, is that not in the shared interests of everyone? Does that not bring us, in a short period of time, to responding to the issue of clean drinking water in those thousand homes I keep talking about in northern Manitoba?

To come back to Senator Campbell's earlier point, this round of conversation cannot be endless. Again, I reiterate that the resolution of the First Nations from across the country speaks clearly and it is upon that resolution that we are here. We are here to suggest a way forward on the authority, and only by their good graces, of those who hold treaty and title rights as leaders in First Nations governments.


Senator Dallaire: I was not here during your presentation, and I apologize. Still I would like to raise a point.


We are continuously raising the point in documents that, since 2003 and up to 2012, the Canadian government will have invested $2.3 billion towards the improvement of water in Aboriginal communities. When we look at that amount, we say, ``That is a lot of money.'' However, if the requirement to make safe drinking water is $4 billion, then $2.3 billion is not close to solving the problem.

This committee stated that we should not introduce legislation until we make the resources available to the Aboriginal people to bring the infrastructure to a workable standard. Then, if legislation is required to guarantee that standard, we will introduce it.

By introducing the legislation, have we proven to you that you will have the guarantee of resources — that $1.7 billion, $2 billion, $5 billion or whatever it is; we are spending billions upon billions here in the south for our water? Do you feel this legislation will give you any better position in obtaining the resources to resolve the problem and implement the standards required for safe drinking water in your areas?

Mr. Atleo: Perhaps, then, to reiterate this notion, it picks up on this most recent conversation that, as was said by the expert panel, first and most critically, it is not credible to go forward with any regulatory regime without adequate capacity to satisfy the regulatory requirements. As I said earlier, while it is tempting to assume that putting a regulatory regime in place will reduce the dangers associated with water systems, exactly the opposite might happen. Creating and enforcing a regulatory regime will take time, attention and money that might be better invested in systems, operators, management and governance.

As our presentation here has suggested, those requirements need to arrive together, at the same time and the same place. The Assembly of First Nations, under the direction of the chiefs, is here willing to pursue fixes to the bill that ensure that the regulations will respect Aboriginal treaty rights and Aboriginal title rights, and that ensure the financial resources match the need.

Until now, the history that we have collectively inherited is one of unilateral and external imposition of systems that are arbitrary and not based on sound planning and, certainly, that nowhere near meet the consultation that is expressed legally in common law or nowhere near meet the new standard of free, prior and informed consent in the United Nations Declaration on the Rights of Indigenous Peoples.

We are here, as I said, under the instruction of the chiefs, to seek solutions that respond to the great urgency we are facing right now in our communities to do that.

Senator Dallaire: That was a long answer to the question, which brings me back to the following point.

Last week, the civil servants indicated to the committee that although they feel the legislation will give them a better position to obtain funding, they have in no way indicated that, because of this legislation, the current plan for improvement of water is now to be considered null and void, or ineffective; that the legislation will now bring in a new plan through that assessment, and this legislation will give you new money. The current plan that started in earnest in 2006 is ongoing and is making significant changes. I remember the situation in 2007-08 and what the results are now already — that this plan has been working and producing significant positive effects in the field.

Do you hope this legislation and this new assessment will bring you new money? Why do we not stay with the old plan and continue to improve and apply that plan, without this legislation necessarily?

Mr. Nahwegahbow: Senator Dallaire, yes, I had an opportunity to watch the proceedings and the witnesses, and I noted that the witness from Health Canada said that their present guidelines seem to be working well. They have had ``tremendous'' — I think that was the word — collaborations with First Nations.

To me, that view suggests we do not necessarily need standards that may be more in the nature of regulations, and what is the rush at this particular point in time?

If we have a system that is working reasonably well, at least in the interim, and an outstanding study is about to be completed — if it is not completed already, namely the national assessment — then what is the problem with waiting for that national assessment, studying it and developing a proper financial implementation plan around that assessment?

It seems to me that approach makes abundant sense and ought to be something the committee considers.

Senator Dallaire: In September 2009, the department decided it must go the legislative route. Then, the department indicated to us that it has had meetings at the regional level about this legislation.

Legislation is a big hammer. It is not a soft system. It is a big hammer by those who have the authority, in the legislation, to use that hammer.

From the intelligence you have gathered from your negotiations with different ministries, staff, politicians and whoever, what do you think has pushed the ministry to initiate this legislation at this time?

Mr. Nahwegahbow: I cannot really say. It is speculative. I know one thing, though. When legislation is imposed, the tendency is that it distracts from the real issues. We end up with a confrontational situation where people react against unilateral impositions of legislation or regulation. That is my sense of it. Other than that, I cannot really say why they are so insistent on proceeding with the regulations ahead of the financial measures.

In the face of clear recommendations from an expert panel, and clear indications from consultations with First Nations, they seem to insist on rushing headlong into legislation when they do not have all their homework done on the financial or engineering issues. Why do we not complete that work first?

Senator Dallaire: In the meantime, they are improving a plan that has been working for the last four years. Maybe they do not like the audit of that plan, and they can sort that out with the Auditor General, but that plan is improving.

First Nations are not left high and dry, waiting for this legislation to give the answer. The problem is being solved, but all of a sudden, we have this legislation coming in with a big hand, without necessarily the resources to implement it once it is approved. Do you agree with that view?

Mr. Nahwegahbow: Yes.

The Chair: I have been on this file for a while, as many of us here have been, and I think the information is that the government, regardless of what government is there, will not tolerate unsafe drinking water for any group of people in this country. The question is how we go about solving this problem.

I have no reason to believe, whether the government be Liberal, NDP or Conservative, that the intent is not there to make this solution work in the best interests of our First Nations people. I want to make sure that point is on the record. Any dealings we have had on this issue have indicated that the government is seeking a solution. It is not seeking to develop something that would allow it to procrastinate or deviate from the original issue.

Senator Sibbeston: My issue deals with the non-derogation clause. Ever since I have come to the Senate, the non- derogation clause has been an issue. Beginning in approximately 1982, in federal legislation, there was a clearly stated non-derogation clause that this act would not, in any way, take away from the rights of Aboriginal people.

Through the years, we have seen a slight changing in the words. On the face of it, the change does not look serious, but when they look at it closely, lawyers working for Aboriginal organizations are of the opinion that Aboriginal rights have been watered down.

This matter is one we have concerned ourselves with. I believe a Senate committee has dealt with this issue, in terms of ensuring that non-derogation clauses continue to be significant in federal legislation dealing with a matter.

Now we see a situation where the non-derogation issue is placed in a regulation. It is like the horror of all horrors, putting the matter of Aboriginal rights in the hands of officials from the Department of Indian and Northern Affairs. Can you imagine?

Perhaps the most significant thing in any statute is the issue of Aboriginal rights. This legislation does not have it in the main body, but it will be dealt with in regulation by department officials. I am concerned about that situation.

As the organization dealing with First Nations in our country, are you concerned about this issue? Do you see a problem in giving the Department of Indian and Northern Affairs control over the issue of Aboriginal rights, considering they do not have a great record of handling this issue in our country?

Mr. Nahwegahbow: Thank you, Senator Sibbeston. I am not privy to the series of studies that have gone on, and I have not followed the evolution of the non-derogation clause.

With regard to this particular clause, I think it goes beyond any non-derogation clause, and it is actually a derogation clause. That is the problem. The only provision similar would be kind of ``notwithstanding'' override clause that is inserted in legislation to override certain rights in the Canadian Charter of Rights and Freedoms. There is no constitutional authority in legislation, certainly not within the Constitution Act, that allows legislators to give permissions to ministers or the cabinet to override constitutionally protected rights.

We live in what the Supreme Court of Canada calls a constitutional society, where the Constitution takes precedence in legislation.

There is limited authority within the Constitution to allow the override. That override is specific to certain Charter provisions, and it has a limited life of five years. This override does not appear to have any limited life, and it is virtually unlimited in terms of the authority it would grant to derogate part of the supreme law of the land.

Senator Stewart Olsen: Thank you for your presentations. They are thought-provoking. Where I need to come from, though, a clarification for me, is that I hear the objections but this bill is enabling legislation, allowing a move forward with the consultations. It enables the consultations to move forward.

However, the issue that I have is with public health and safety. Right across the country, we have laws that make public health and safety primary. They override everything. I do not see these laws as infringing on treaty rights in any way. We have laws in every province and every municipality that say we must provide safe drinking water for our people.

I think this direction is where this legislation is going. It is trying to look after the public health and safety of our citizens. In many cases, everyone is overridden by public health and safety. You name it; things happen, not only on reserve but right across the country.

How do you suggest we get around this situation. We will quibble forever on Aboriginal treaty rights versus public health and safety, I think. What we need from you are suggestions about how to address this important principle, that the health and safety of citizens is primary.

Mr. Atleo: Chair, I want to mention that Mr. Leblanc is an engineer. You have raised a number of important questions around the practical aspects of these issues. I would like to ask if we can hear from him.

I agree with the senator and want to share a sense of the urgency and paramount nature of the health and safety of all our people. Clearly, that sense is what drives us together today. What we have had until now has not worked. Otherwise we would not have the conditions. I, probably like many of you, have travelled to many of these communities, especially over the last year. The conditions are absolutely deplorable.

Senator Stewart Olsen: I think it is shameful that we have not had this kind of legislation.

Mr. Atleo: I join you in that sentiment. It is an absolute shame that we have the conditions we have. These conditions are the reason we had this important discussion with the chiefs in December.

There are great concerns, as we have shared today, around the issues of acknowledgment of title and rights. First Nations have felt, and still feel, deeply vulnerable in their lives, whether it is unsafe drinking water, deep gaps in funding for education or living in overcrowded housing. First Nations feel a serious threat to their treaty and Aboriginal title rights as well. Their very identity is often threatened by external forces.

First Nations feel vulnerable and threatened every single day, from so many different directions. We need to come together and acknowledge that what we are looking to do is reconcile the existence of Aboriginal title and rights and treaty rights that are entrenched in section 35 of the Constitution, and that the United Nations Declaration on the Rights of Indigenous Peoples has given us a new framework that says that we must now, together, address these urgent issues, like the need for safe drinking water, and the need to ensure that children have a proper education that is equitable and fair.

You are absolutely right that together, the leaders, as the chiefs are saying, are making water and safe drinking water a priority, and they have instructed us to come here and examine how, in short order, we might appropriately deal with this challenge.

I thank you for your comments and ask the chair if it would be appropriate at some point in time to ask Mr. Leblanc to respond.

The Chair: We should do this sooner rather than later, because I am running out of time. I have another panel of witnesses to appear at this meeting.

Go ahead, Mr. Leblanc.

Irving Leblanc, Director of Infrastructure, Assembly of First Nations: Thank you. I will be as brief as I can.

Thank you, Senator Stewart Olsen, for bringing up that point. I think it is fair to mention that the Department of Indian and Northern Affairs has developed protocols for water, waste water and small systems. Those protocols are effective without regulation or legislation. They are based largely on the strict regulations and standards that Ontario has developed.

The protocols are good documents but they lack the funds to go with them, which brings us back to the need to have adequate funding for the systems.

The department has told us they are in a capital crisis. There are not enough resources to do what is required today. Legislation will not answer that need. It is a matter of funding and addressing the needs of First Nations, and supporting a program that is traditionally underfunded. This situation goes back to the 2 per cent cap that First Nations have faced since 1996.

Essentially, the day we open up a plant it is underfunded. That fact has put First Nations operators and managers in jeopardy. The issue comes down to addressing the resources and ensuring the money is there.

Granted, as another senator mentioned, there have been significant funds in the budget, but the funds simply are not enough. Look at the number of high-risk systems there are, and it is anticipated there will be more systems in the report.

The Chair: With regard to the evidence we have heard to date, department documents suggest that the proposed regulatory regime will be rolled out in a phased approach over several years, to ensure that First Nations are in a position to comply with the regulatory regime. Officials have indicated that government funding levels will be there to allow for the improvements in infrastructure and technical capacity, if required.

Do you have any comments about the phased approach? Is this your understanding of how that rollout will proceed, national chief? I ask because I think Mr. Leblanc has indicated that the system that is there now is working. Things have changed for the better. I would think that, if we do pass legislation, and a structured process is included, governments will not be able to ignore the need for funding on such a basic requirement as safe drinking water.

Mr. Atleo: The presentation you have heard is about the need to achieve collaborative development of those regulations. That collaboration is what we are seeking essentially, a way forward to accomplish the joint development of regulations.

You are saying that the resources will be there; an assurance that the appropriate resources will be there to match those needs, as Mr. Leblanc has said is needed. I do not know if Mr. Nahwegahbow has anything to add.

Mr. Nahwegahbow: As I said before, I watched the presentation and I noted that the suggestion was a phased approach to rolling out — not the legislation, they want the legislation passed — of the regulations and that the regulations can be implemented later. The problem is that the regulations can be enacted at the sole discretion of the minister or the Governor-in-Council, with no provision for First Nations to have any say in those regulations.

If it is done that way, then it must be done with the notion of free, prior and informed consent on the part of the First Nations to which regulations will apply. Otherwise, there is no assurance that there will be any collaboration with First Nations. There is no assurance that those regulations will not be rolled out without the financial assurances. That is a problem.

The other point that was made earlier is that if the engineering assessment reports are completed, then why does the department not table those reports here? If the government is in such a rush to implement the legislation, why do them not bring the reports here and let us see the state of drinking water systems across the country. If this committee is serious about addressing and redressing those problems, then insist on the financial plan first, or, at least, have both financial plan and legislation before this committee. I know the limitations are that you cannot put financial provisions into the bill, but you can study what the financial implications are without necessarily putting them into the bill.

The Chair: There has been some suggestion of a preamble to cover the collaborative aspect of establishing regulations. Would that meet with the requirements with regard to collaboration regarding the establishment of regulations?

Mr. Nahwegahbow: Unfortunately, a preamble is useful as an interpretive tool for legislation, but it is not a substitute for a provision in the enabling provisions themselves that say collaboration is required or, even more importantly, that the free, prior and informed consent of the First Nation is a precondition to the implementation of the regulation.

The Chair: Thank you very much, gentlemen, for your presentation and your answers to the senators' questions.

We now have before us this morning Angus Toulouse, the Regional Chief of Ontario.

It is a pleasure to see you again, Mr. Toulouse. I presume you have a presentation, which we ask you to keep as reasonably tight as possible, to leave time for senators to ask questions. You will introduce the person you have with you, chief, if you would be so kind. Let us proceed. You have the floor, sir.

Angus Toulouse, Regional Chief of Ontario, Chiefs of Ontario: Good morning, senators and committee members. Here with me today is Johanna Lazore, Senior Policy Adviser, with the Chiefs of Ontario.

[Editor's Note: Mr. Toulouse then spoke in his native language.]

I am from Sagamok Anishinabek on the north shores of Lake Huron. I am here today on behalf of the Chiefs of Ontario. I am here also to urge you to reject wholly the legislation proposed by Bill S-11.

First Nations are entitled to enjoy safe drinking water from the sacred water sources entrusted to us and to our care and stewardship by the Creator. This right cannot be separated from our right to manage the sacred resource and to apply our laws and values respecting water-resourced management. Our entitlement to enjoy safe drinking water is a fundamental human right. It is an aspect of food security assured through the recognition and affirmation of our Aboriginal and treaty rights pursuant to section 35 of the Constitution Act of 1982, and further supported by the United Nations Declaration on the Rights of Indigenous Peoples.

In light of these facts, it should also be mentioned that First Nations are not opposed to regulations in respect of water. We have repeatedly stated that prior to the development of legislation on our waters, our critical infrastructure needs must be addressed. The Chiefs of Ontario in Assembly have affirmed their commitment to achieving the highest possible drinking water standards on reserve. Again, however, to reach this goal, infrastructure needs must be met first.

The reasons for unsafe drinking water are clear, and have been stated by both the Royal Commission on Aboriginal Peoples and by the Expert Panel on Safe Drinking Water for First Nations. The royal commission urged Canada to address the shameful situation, but the recommendations regarding First Nations drinking water have been largely ignored.

The expert panel was explicit about the main reason for Canada's failure. 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.

In addition to the most obvious problem of absent infrastructure, there are numerous other problems with Bill S-11. We have sent an extensive explanation on these concerns to your committee clerk for distribution. We are greatly concerned that the proposed legislation will violate many of our collectively held indigenous human rights.

As recently affirmed by the United Nations Human Rights Council in September of last year, the right to water is a basic human right. It is a right that derives from the right to an adequate standard of living. In an international law context, our resource rights and our rights to self-determination cannot be extinguished, a point recognized internationally by the United Nations Declaration on the Rights of Indigenous Peoples.

The Crown is therefore under an obligation to explore First Nations' options for the recognition of our customary laws as they relate to water. Federal and provincial governments should strive to achieve the standards set by the UN Declaration on the Rights of Indigenous Peoples. Indeed, numerous articles of the declaration are implicated in any discussion on the issue of water in relation to indigenous peoples. Those articles include, but are not limited to, the following: the right to self-determination; the right to maintain and strengthen distinct political, legal, economic and social cultural institutions; and the right not to be subjected to forced assimilation or destruction of their culture.

The articles also include the right to approve the commercial use and development of water in their traditional territories; and the right to access financial and technical assistance from states and through international co-operation for the enjoyment of the rights contained in the declaration.

Clearly, none of these rights have been achieved in the development of Bill S-11. The Chiefs of Ontario also have numerous concerns implicating the Constitution and Aboriginal and treaty rights.

First, the Crown failed to abide by laws respecting consultation in a combination of the lead-up to, and drafting of, Bill S-11. There was no comprehensive consultation process with First Nation communities and organizations regarding legislative options, including those found in the reports of the Expert Panel on Safe Drinking Water and the Standing Senate Committee on Aboriginal Peoples.

The process employed by the federal Crown in conducting the regional First Nations impact analysis contained a number of deficiencies. These flaws, outlined in our written submission, undoubtedly affect the extent to which this process can be characterized as consultation or as part of a consultation process.

Bill S-11 will also potentially impact on Aboriginal and treaty rights. Any proposal for law-making to ensure safe drinking water on reserve necessarily involves legislation in regard to the waters of First Nations in our reserve lands and our traditional lands, and necessarily implicates our inherent rights, jurisdiction and responsibilities to manage those waters.

Our relationship to all water, and especially the drinking water we rely on for our survival, is an important aspect of our customary laws. The customary law of each First Nation is connected integrally to our traditional spiritual beliefs. Consequently, Aboriginal rights in a broad cultural and spiritual context are affected by any legislative proposal directed at regulating water sources, quality and quantity.

The first operative paragraph of Bill S-11 makes reference to the ability of the Government of Canada to make regulations relating to lands. There is no mention of treaties. There is no mention of water. The goal of this reference is clearly to assert the invalid jurisdiction of the federal government to make regulations on First Nation lands.

The level of incursion into First Nations by this legislation becomes clear, particularly in clauses 4 and 6 of the bill. Under these sections, the authority is transferred away from First Nations and conferred on any legislative administrative, judicial or other power or body. Clause 6(1) makes it clear that the regulations will prevail over any law or bylaw of First Nations.

In conclusion, I reiterate that the current prescriptive approach of incorporation by reference is not acceptable to First Nations. All three recommendations of the expert panel report must be explored fully to determine the best option for addressing First Nations' on-reserve water issues.

There are options First Nations are willing to explore with the Crown. These options are based on recognizing First Nations law and working with federal and provincial governments to foster a better understanding of our respective approaches, laws and values respecting water resource management, on which the assurance of safe drinking water depends.

To date, the federal Crown has refused to explore such opportunities and has limited discussion to its own preferred options.

Meegwetch, thank you, for listening to me this morning.

Senator Brazeau: I have a couple of questions. You mentioned that if Bill S-11 passes, it may violate Aboriginal human rights. Can you enumerate what those rights may be?

Mr. Toulouse: Yes; it will violate a number of sections that are listed in the UN Declaration on the Rights of Indigenous Peoples. It certainly violates —

Senator Brazeau: Sorry to interrupt at this point, but I think you will agree with me that the UN declaration is a non-binding agreement, even though it was endorsed by the government. We are talking about access to clean and safe drinking water here.

Mr. Toulouse: We are talking about the right to self-determination, which is found in Article 3 of the UN declaration. It may be an aspirational document for government, but First Nations continue to exercise what they believe are the rights that have been recognized by the United Nations in that document. Those rights, again, include the right to self-determine what our laws are.

Let me use the example of water in many of our First Nation communities. I will use the example in my First Nation community. Back in the early 1980s, no legislation was necessary. What we had was a sickness in our community, E. coli. It did not require legislation, but it required resources of government to change the system, to improve the system and to make a new system. That is what was required in our First Nation community back in the early 1980s. That is what First Nations are talking about.

What we have right now in the First Nation community is probably one of the three top water systems in Ontario. It is because we have good source water. We managed to find an artesian source for our community. The water system required resources and the ability to distribute that artesian source to each of the community households. That system required resources, not legislation or regulations. It required money. It required the ability for the community to hire the consultants and contractors to develop the system that now provides one of the best water qualities in Ontario.

I say that because what is fundamental here — and what I heard the national chief in his presentation talk about — is the need to address the assessment that has been undertaken by the federal government. We need to look at that assessment and to start implementing the kind of resources that the First Nation communities need to remediate the problems in their source water, and not only source water but the systems that are currently failing to meet any standard that may be out there.

Again, as I stated earlier, the First Nations are about wanting to provide the kind of quality and healthy communities, certainly in their communities, and water is a big part of that.

Senator Brazeau: Chief Toulouse, help me understand. You mentioned that if Bill S-11 is passed, it might violate Aboriginal human rights. If passed, the First Nations across the country will jointly develop regulations with the federal government; regulations that will reflect traditions, customs, et cetera. You mentioned that will violate the right to self-determination. How can providing access to safe, clean drinking water to our First Nation citizens violate our right to self-government?

Mr. Toulouse: Bill S-11 does not provide any guarantee for those First Nations. I gave you the example of my First Nation community. Without that resource, as much as there is the will and desire of the community and the leadership of that community to have clean water, without identification and having the guarantee of a system that can meet that regulation and that standard, it will not happen.

You can pass whatever kind of legislation and regulations, but without the resourcing that comes with them, without an implementation plan of the national assessment that has been undertaken, they do not provide a guarantee. Bill S-11 does not provide a guarantee of clean drinking water without the resources.

The Chair: I have a supplementary question. If Bill S-11 is not the answer, do you agree that a regulatory regime should be in place, or do you believe there should be no regulatory regime?

Let us say that funding is adequate. Let us leave out the resource aspect. What would your proposed water management system look like? If you say that Bill S-11 does not fill the bill, what would fill the bill as far as a regulatory system goes? Some of us believe that we all need regulatory systems. Do you have a suggestion to replace Bill S-11?

Mr. Toulouse: Yes; we have initiated work with our First Nation communities to arrive at a regulation at the local level that, at minimum, will meet the Ontario levels.

Right now, First Nations are signing off on contribution agreements that essentially say they will provide potable water to the level of the provincial regulations. They are signing off on those agreements, again, based on the resources they currently have, but the systems do not allow them to provide it. There is recognition right now that a standard of quality water must be met.

Our Ontario First Nations Technical Services Corporation is developing tool kits for our communities to develop the kind of legislation and regulations that will be locally recognized and endorsed by the First Nations in general to assure citizens that we need and want to deliver the kind of water that is expected anywhere else, and to meet the minimum requirements. Our leadership is developing those regulations.

Of course, they are struggling with the aspect that they are not sure when the implementation of the national assessment will provide the kind of resources to upgrade and to create new infrastructure or water in many of our First Nation communities.

Senator Brazeau: That information is good to hear. If the leadership is developing its own regulations to deliver clean water to their citizens, who is responsible and liable for the delivery of clean drinking water right now?

Mr. Toulouse: Right now, I think the federal government has a fiduciary obligation to provide the kind of infrastructure that should have been there years ago.

To give you an example, my job as a youth, until I left for post-secondary education, was to bring water to my home. I carried potable water from the spring to my home. To this day, many people continue to provide basic water delivery that way. I am not even talking about potable water, but basic water. First Nations have that huge challenge.

I think First Nations have recognized that challenge through our ceremonies and our spirituality. The women have continued to take ownership for ensuring potable water by educating people as to what their obligations are to the environment and to the source water and so on. Much is to be said about understanding each person's responsibility in terms of providing a healthy community and a healthy infrastructure for our community members.

Right now, what First Nations are waiting on — the will is there — are the resources to improve the systems.

Senator Sibbeston: I am a little naive in terms of the situation in Ontario. I appreciate what you say, but I feel that your presentation today centres a lot on rights.

You say you are not opposed to regulations. You say there has been no adequate consultative process and you are concerned about this law affecting Aboriginal rights. What is the alternative?

I think you have been asked that question. I am concerned because as I see it, this bill deals with safe drinking water on First Nations reserves throughout our country. That goal of the federal government is admirable and laudable. However, basically you say that you reject this legislation.

What is the alternative? If the Ontario chiefs are concerned, I would be interested to know what the alternative is in a clear way so that we know definitely that the Ontario chiefs are doing something about the situation; that they have their own plan and that this legislation will not be the means by which clean water can be achieved on reserves.

I am from the North so I am a bit naive about the situation in Ontario, but I obviously want to see good clean water for the people. I am interested to hear from you that if you do not like this bill, what is the alternative? What are you prepared to present to this committee so that we can come to the view that there is an alternative; that the First Nations have a better plan than this one, so we should also reject this bill?

Mr. Toulouse: The First Nations in Ontario say we are the original peoples of Turtle Island and have the ability to have the self-determination to govern ourselves. We are talking about recognition of our First Nations governments.

We can continue to build on past relationships and to co-develop an appropriate path forward, with pertinent information being provided to First Nation leadership so they can make those kinds of informed decisions. That relationship is what we have been talking about in terms of the recognition of First Nations governments.

Our resolution in Ontario speaks to the need for First Nation management of water resources. There is recognition that we need standards and we can establish those standards. If we need to work with other jurisdictions to harmonize those regulations, we need to create that harmonization as effectively as we can.

We are not about not wanting to provide quality water; we want to have recognition of our First Nations governments and our abilities to enact the same kind of standards and regulations. The recognition is what First Nation leadership in Ontario has been seeking from both levels of government.

Of course, there is still a huge requirement. Treaties have been signed and treaties have yet to be implemented to their fullest.

A lot of the requirement is resource benefit sharing. Sharing in the resources is the kind of discussion that First Nation leadership want to have. They do not want to have their hand out. They are saying this great country was built on the lands and resources of the First Nations people. Federal and provincial governments still need to sit down with leadership and have the kind of discussions that would address our capacity issues.

These times are challenging, and many of our youth are recognizing the spirit and intent of what was intended in our treaties. In Ontario, we have come through an inquiry by Justice Linden that found treaties were foundational. That finding speaks to the relationship of recognition of our own ability and our inherent right to govern ourselves.

All we need to do is to share in the resources, in terms of implementing and recognizing the needs assessment that has been undertaken and the resources required to meet the conditions and challenges of First Nation communities in relation to water.

The Chair: If I may, Senator Sibbeston and I asked the same question.

Do you believe there must be a regulatory structure? The federal government has responsibility for more than Ontario. If we are to disburse funding properly, efficiently and effectively, there has to be some structure.

I live in British Columbia, and I know that there are different opinions in the region that I represent as a senator, which is comprised of British Columbia, Manitoba, Saskatchewan, Alberta, the Yukon and the Northwest Territories. However, safe drinking water is a basic requirement. We are trying to establish regulations for that basic requirement. You say that the government has a fiduciary responsibility to provide safe drinking water, and we agree. However, we need a structure of some kind.

On the issue of treaty rights, I do not think that any government wants to impinge on those rights. This committee has worked on specific claims in the past. We worked jointly with First Nations, and the government developed legislation jointly, which seems to have worked. Working jointly is what we are trying to do here. You are not really giving us a clear-cut alternative on dealing with safe drinking water specifically.

I am not trying to be impossible, but we are looking for solutions and ways to proceed that will improve the plight of our First Nations people.

Mr. Toulouse: If we were to sit down and identify what collaboration means, we may identify priorities on which we could work. I am saying that First Nation leadership can identify priorities in relation to recognition. We are not opposed to collaboration; we just do not want an arbitrary approach to development of regulations. We want to be listened to and to have input.

We want to talk collaboratively about the agenda priorities of First Nations. We do not want the priorities of First Nations communities imposed upon us without consultation and discussion. It is difficult for First Nations to jump into discussions on legislation that may not even be the priority of the community. Potable water is a priority in the community, but legislation will not change that priority.

The requirement is to have the resources associated with providing good water systems in our communities. I know that the commitment has been made that it will be there, but without seeing the assessment and how it will be implemented, it is difficult for First Nations in Ontario to tell the federal government to pass whatever regulations they want with the confidence that they will take care of us as they always have.

That is not the situation in our communities. We are impoverished. We have infrastructure that does not work. For many of our isolated communities, it is a case of out of sight, out of mind. Some households struggle with 18 people in one house, a situation that made it difficult to recover from the H1N1 virus. There are so many overlapping issues as a result of the poor infrastructure in our First Nations communities that ties into the health of our members.

We need our First Nations governments to sit down with governments and prioritize our needs to address the issues in a more meaningful way, rather than having to oppose legislation. We should work on legislation collaboratively. That approach is the preferred one of many First Nations leaders in Ontario.


Senator Dallaire: I have a lot of respect for the fact that you made your presentation in your mother tongue. What I find rather deplorable is that in Quebec, they never tried to teach us Aboriginal languages. To me, it is really lacking in the cultural evolution of our country.


From your perspective, is Indian and Northern Affairs Canada responsible for providing safe drinking water, or is INAC's responsibility to assist you in ensuring that drinking water is available? In the initial part of your presentation, you spoke about the responsibility being yours and Mother Nature's.

Mr. Toulouse: I understand from leadership in Ontario that treaties were signed that talk about a relationship with the Crown. When we signed treaties, there was a recognition that we would share in the richness of the land and the resources attached to it. We have signed those treaties and continue to sign them.

Many of us are still on our little reserves. We are talking about co-developing a meaningful process with First Nations communities. We are talking about the honour of the Crown in terms of meeting its treaty obligations. We are talking about sharing the rich resources of the country. We are talking about the recognition of our own abilities in 2011. We have lawyers, doctors and water specialists. We are talking about the recognition that needs to be afforded to our First Nations governments by the Crown that signed treaties years ago, which are still relevant.

Senator Dallaire: You have given me the grand strategic backdrop. Let us now bring it down to the water problem. You want safe drinking water so that your people can live. We are helping people in many developing countries to have safe drinking water.

Your nation needs water. You have INAC. From your perspective, is INAC to support you in providing clean water for your people or is INAC responsible for ensuring that you have clean water for your people? Along with that responsibility comes the responsibility to obtain the resources to make that safe drinking water happen.

Mr. Toulouse: We believe that in Ontario it is the Crown's responsibility. That can mean Health Canada, Indian and Northern Affairs Canada or any Crown agency. The point that First Nations leadership in Ontario continues to make is that we have treaties and it is the honour of the Crown we are talking about that needs to meet those treaty obligations. However, we can co-develop through a meaningful consultation process.

To be caught in terms of saying that the Department of Indian and Northern Affairs has to provide the kind of quality water, I think it is our own inherent right to provide the kind of quality water to our citizens. What we need from the Department of Indian and Northern Affairs are the resources to provide that water quality. We need recognition by the Crown government that we have the inherent ability to be self-determining and to create our own laws that will meet basic Ontario and Charter standards, if you will. We can do that. That is something we continue to work on.

Senator Dallaire: With that response, the question then is, why do you feel the government must bring in legislation to guarantee that you do that?

Mr. Toulouse: I believe that if the government brings in legislation, it should bring it in collaboratively, not as an after-thought but as the discussion is taking place and the idea is being talked about. Collaboration should have taken place at that point, not after the fact. Again, I am saying that process has been problematic. It does not recognize the First Nations governments and the kind of abilities they have in 2011.

Again, we want to be clear that the Department of Indian Affairs, which has been around since 1876, has failed First Nations communities in meeting basic infrastructure needs at the community level, be it roads, water or housing. We are talking now about Internet broadband cable even, and those kinds of things. In these basic infrastructure needs, we are still years behind in many of our First Nations communities.

I believe there has been a problem with the Department of Indian Affairs not being able to provide basic infrastructure, which is why First Nations communities are now saying that we need to stand up for ourselves; we cannot continue waiting for government to provide these kinds of things. We need to find a way to ensure the treaties our ancestors signed are treaties that can be, and should be, implemented by the Crown government in this day and age.

Again, treaties talk about sharing in the wealth of this country, and that is what our First Nations leadership in Ontario and its citizens keep talking about.

Senator Dallaire: You are making good advocacy for that issue, and I support you having the opportunity to do that, but I am trying to bring you down to specifics, if you do not mind. Let us bring in the specifics of this legislation right now.

You have the backdrop that you have described and there have been failings. Does the nature of this legislation give you the impression that your nation and other Aboriginal nations have failed to bring clean water to their people and so the government must bring in legislation to sort you out and ensure that you will bring clean water to your people?

Mr. Toulouse: Again, I hate to go back to a situation that I am most familiar with. No chief and council in this province or in this country want to provide unhealthy water to their people. There is no one. Will the legislation guarantee good water? No, it will not. Resourcing that matches what the regulation calls for may do that.

Senator Dallaire: Do you believe that you need to be brought on the carpet with this legislation —

Mr. Toulouse: No.

Senator Dallaire: — to be able to implement whatever, or ensure, that the resources that will be made available to your nation, as well as the resources being controlled by INAC, will be applied to bringing safe drinking water onto reserves?

Mr. Toulouse: I believe the First Nations in Ontario would accept a guarantee of the kind of resourcing for remedial and new infrastructure that must be attached to the legislation.

I hear those things do not happen. How do we ensure, then, that the First Nations at the end of the day will have the kind of potable water that the legislation calls for? Again, I believe potable water can happen only with the kind of collaboration and resourcing that the needs assessment has identified.

Senator Dallaire: You have indicated clearly that over the years the federal government, through INAC, has failed to provide resources or the capabilities needed; in particular, for ensuring safe drinking water and the distribution thereof. The position that many people who are not of your nations will take is that maybe your nation and your leadership has failed also in trying to solve that problem internally.

Studies over the years, particularly the last one with the clean water plan of 2006, have said, here is a way we can sort out this problem, here is a funding line, and let us get on with it.

This plan has been working for the last four to five years. From all the reports we have been getting, the plan has advanced the situation significantly.

My question is, will this legislation enhance that ongoing evolution towards clean drinking water and guarantee the same evolution into the future by bringing the resources to advance it, or is this legislation there for some other reason?

Mr. Toulouse: I was caught up in the first part of your question, which is whether First Nations leadership failed its citizens by not bringing the kind of water systems to their communities that were needed. I believe the First Nations may have failed their citizens by still, in 2011, remaining under what is called the Indian Act. That is where we failed our citizens.

As I stated, in Ontario we are Anishinaabeg, we are Mushkegowuk people, not Indian Act people. We keep wanting to come back to the recognition, as nations, that, yes, we have failed our citizens because it is only in large gatherings of our citizens that we are reminded of how strong a nation we really are. We need to listen to our citizens as they talk about the need for nation revitalization and nation rebuilding. We are not 600 and some independent communities but larger nations, if you will, in this country.

The other part of your question is whether there is another purpose to this legislation. I hope the only purpose to this legislation is to ensure there is potable water. When we went through our own processes in Ontario, we brought in a lot of our elders and healers. The worry is that there are other suggestions, and there is an understanding that no one owns the water; it is a necessity of human life.

We do not want to see any legislation that suggests we are giving up our requirement to be good stewards of the land and that we are not interested in the water.

Clearly, I am not certain if there is another purpose to this legislation. The worry from our leadership implies that there may be. If we are talking only about potable water, why do we not go there with the Department of Indian and Northern Affairs and adjust those contribution arrangements I spoke about, which I had to deal with in the early 1980s and 1990s, in terms of our ability at the community level to provide potable water? It did not require legislation.

Senator Dallaire: There you go. Thank you for a bit of a circuitous way to the response I was hoping for.

The Chair: There are no further questions and our time has run out. I want to thank you, Chief Angus Toulouse and Johanna Lazore, for appearing before us.

The meeting is adjourned until tomorrow.

(The committee adjourned.)