Proceedings of the Standing Senate Committee on
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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