Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 18 - Evidence - February 15, 2011

OTTAWA, Tuesday, February 15, 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: Honourable senators, I will call the meeting to order as we have a full agenda this morning.

Good morning. I would hike to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples on CPAC or on 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 properly fund system operation and maintenance and the lack of clarity with respect to roles and responsibilities. This morning we will 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 witnesses from four organizations: the Canadian Environmental Law Association, CELA; the Atlantic Policy Congress of First Nations Chiefs Secretariat, APC; the Assembly of Treaty Chiefs of Alberta; Manitoba Keewatinowi Okimakanak Inc., MKO. We also have Professor Marie-Ann Bowden, from the College of Law, University of Saskatchewan, appearing as an individual.


Before we go to our witnesses, I would like to introduce the committee members who are here this morning.


On my left is the deputy chair of the committee, Senator Dyck, from Saskatchewan. Next to her is Senator Sibbeston, from the Northwest Territories; Senator Dallaire, from Quebec; and Senator Demers, also from Quebec. On my right is Senator Nancy Ruth, from Ontario; Senator Ataullahjan, also from Ontario; Senator Brazeau, from Quebec; Senator Poirier, from New Brunswick; and last but not least is Senator Raine, from British Columbia.

Members of the committee, please assist me in welcoming our first witnesses. From CELA, we have Theresa McClenaghan, Executive Director and Legal Counsel; and, appearing as an individual, from the College of Law at the University of Saskatchewan, Professor Marie-Ann Bowden.

Colleagues and witnesses, we have a lot of evidence to go through this morning. I urge you to keep your presentations concise; Senators and witnesses, please keep questions and answers as tight as possible. I do not want to reduce the quality, but I certainly hope to improve the quantity of questions and responses.

Without further ado, ladies, please proceed.

Theresa McClenaghan, Executive Director and Legal Counsel, Canadian Environmental Law Association: As indicated, I am with the Canadian Environmental Law Association. Briefly, we are federally incorporated, not-for-profit, 40 years old and also an Ontario legal aid clinic. We represent many clients, including Ontario First Nations in a variety of matters. We represented the concerned Walkerton citizens in all phases of the Walkerton Inquiry, and we have a great deal of expertise on drinking water and source water protection, in particular.

I would like to touch on three things. We have provided our briefing note from CELA. First is the impact of the bill, as it is presently framed, on Aboriginal and treaty rights. Particularly, we want to discuss — as I know you have discussed here before — clause 4(1)(r), giving Canada the authority to determine the extent to which the Crown would abrogate and derogate treaty rights.

I know you have discussed this, so I would like to briefly read you section 82 of the Ontario's Clean Water Act, which is the source protection legislation in Ontario. It is a non-derogation clause that was introduced because that provincial legislation provided an opportunity for Ontario First Nations, in certain places in the province, to opt into the source protection program in some defined ways. There were concerns about whether there would be incidental interference with section 35 rights by First Nations. That section was provided and it states the following:

For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for the existing aboriginal and treaty rights of the aboriginal peoples of Canada as recognized and affirmed in section 35 of the Constitution Act, 1982. 2006, c. 22, s. 82.

That was very satisfactory for people to then proceed with their decisions as to whether or not they would participate in Ontario's Clean Water Act vis-à-vis source protection in those planning regions.

The second point I wanted to make is that, in my opinion, this legislation does not provide a sufficient vision as to how it is to better protect First Nations drinking water. We absolutely agree that First Nations drinking water is inadequately protected in Canada. It is one of the issues that also Justice O'Connor addressed in the Walkerton Inquiry. He made a statement, with which I am sure we all agree, that it is unacceptable that we have a different level of drinking water protection for most First Nations communities than we do for most of the rest of Canadian municipally treated water systems.

However, this bill does not address that because it is one of the most extreme versions of enabling legislation that I have seen. It does not set out any vision for how it is to work, what the roles and responsibilities would be or how powers would be exercised. Many possibilities were discussed by the first witnesses before this committee, who were the officials from the relevant departments. However, they are all just possibilities, and it could be from one extreme to another. It could be an extreme situation of interference with Aboriginal management of their own drinking water systems, or it could be, in theory, that they have a lot of autonomy. However, we do not see that in the bill as it is drafted.

Without belabouring the point, I hasten to say that we do not disagree that it does not need to be one-size-fits-all; at the same time, we need to have a robust system of safety. Therefore, it seems to me that there is a possibility for this legislation to be improved significantly such that some of these problems are addressed.

Third, in my view, drinking water is one of the core values of any people. The ability to make decisions to manage drinking water, but with adequate resources, is core. It is of grave concern that the possibility exists that this bill is interfering with section 35 rights and particularly the potential for environmental governance decisions by the First Nations over their resources, and particularly over their drinking water resources.

I know you want us to keep the presentations short, so I will stop there and am happy to respond to questions later.

As I indicated, because we do a lot of work on drinking water at CELA, I would be happy to answer questions specifically around that, as well.

Marie-Ann Bowden, Professor of Law, College of Law, University of Saskatchewan, as an individual: I have enjoyed 30 years of the College of Law at the University of Saskatchewan. I am presently a joint appointment in the School of Environment and Sustainability. I also teach in the Indigenous Peoples Resource Management Program, which is an interdisciplinary college operating in partnership with the College of Agriculture and Bioresources; Indian and Northern Affairs Canada, INAC; and the National Aboriginal Lands Managers Association, NALMA. I instruct band land managers from across the country in environment, legal and resource issues that impact on their reserves. I also appeared before the North Battleford Water Inquiry and had a role in that inquiry, and have done research and writing on Aboriginal drinking water issues on the Prairies.

The introduction of Bill S-11 marks a significant step forward in health protection for First Nations people. However, it is the content of that proposed legislation that warrants our careful consideration today. I, too, would like to raise three quick points for your consideration.

The complexity of water management and drinking water safety on-reserve is difficult to encapsulate in legislation. The comprehensive nature of Bill S-11 will necessitate an unprecedented degree of direction, oversight and coordination of several government departments, First Nations and First Nations organizations, as well as other stakeholders such as watershed users. How, exactly, it is all to work is not abundantly clear in the bill beyond clause 4(1)(b), which states that regulations "may confer any legislative, administrative, judicial or other powers on any person or body."

The expert panel has suggested that any law about drinking water safety on-reserve should provide for the establishment of an independent entity made up of representatives appointed by the minister in consultation with First Nations. In my opinion, this is a good idea. A First Nations commission, established pursuant to the legislation, could be responsible for licensing and operation of water facilities, including inspection and enforcement, as well as leading discussions on relevant law and policy.

By statutorily creating a credible body with particular expertise about the issues, efficiencies in administration and practice, not to mention improved results in drinking water, should be realized. An arm's-length, statutorily mandated commission would help ensure accountability of all partners through investigative powers, and assist the minister in promoting the development of responsibility for water management in a manner that would ensure success.

As the chief justice of the Supreme Court of Canada stated in Delgamuukw v. British Columbia, "Let us all face it, we're all here to stay." In recognition of this reality, it is incumbent upon governments to find workable solutions through negotiation with First Nations on issues of common concern respecting constitutionally protected Aboriginal and treaty rights.

Clause 4(1)(r) of the bill, which I am sure you have heard about already, gives Canada blanket authority to determine the extent to which the federal government can abrogate treaty rights in direct contradiction to section 35 of the Constitution. Quite simply, this clause should be removed from the bill or replaced with a non-derogation clause. Without specifics, it will serve no particular end other than provoking a response that will be well beyond issues of drinking water safety, while raising the spectre of expensive constitutional litigation. Trends in the law indicate that the federal government may well lose such a battle.

As the expert panel suggested, there is need for strong leadership, especially within the federal government, to ensure the success of this act; but in order to be credible and successful, that leadership must respect constitutional limitations.

Finally, the task of the legislators of Bill S-11 has been a difficult one, how to provide safe drinking water regimes for First Nations that have diverse water issues and, similarly, diverse water management experience and knowledge. Although this task demands flexibility within the legislation, Bill S-11 fails to consider that even with varying degrees of sophistication in water management ability, there is nonetheless a role for First Nations communities in decision making regarding the provision of the resource to their membership.

Provisions that permit deeming of ownership, unilateral determination of fees and forced third-party agreements are provocative and may not advance either First Nations independence or, arguably, safe drinking water objectives. Some First Nations, particularly in the more affluent southern communities, may be in a position to exercise a greater degree of autonomy. However, many communities exist where there is a need for more active participation in water management, as opposed to outright control.

That said, capacity building is not about funding alone. While there are communities who are prepared to take ownership of their water supply systems immediately because they possess the infrastructure and the resources, training, skill and expertise to do so, there are many others communities who require some or all of these prerequisites before responsibility and associated liability can be assigned to them.

There is a broad spectrum of relationships between absolute ownership of water and sewage systems by the First Nations and complete control by an outside "person" contemplated by the bill. This should be considered on a nation-by-nation basis. Any and all alternatives should be premised not only on the fundamental concern for health and safety, which is common ground for all stakeholders, but also on agreements to build momentum and ensure success of all community-run systems.

Simply put, if you build a water system and assign ownership to a First Nation, you may provide clean water for a few months; but if you build a system in cooperation with a community that incorporates a multi-barrier approach, training and ongoing support in infrastructure, monitoring, testing, et cetera, and then pass on ownership, you will have clean water for many lifetimes.

Senator Dallaire: I think your paper, Ms. McClenaghan, is probably the clearest description of this problematic piece of legislation that I have seen thus far, and your arguments reinforce that.

That brings me specifically to the legislation. I have been slowly moving toward the acceptance that perhaps we need legislation, although I still believe that the clean water implementation plan should continue. However, if we go to legislation, why do you think that it was felt to be so essential to go after the overriding authority on all other acts, including the Indian Act, to be able to establish a system of control to guarantee that the resources are being used appropriately and that the water will meet certain standards? Why do you think they had to come in with such a huge sledgehammer in this legislation to achieve that aim?

Ms. McClenaghan: I do not think it needed to do that. I do not know why it was introduced that way.

One of the major lessons from both Walkerton and North Battleford was, yes, we need a very rigorous system, but, as important, we need the people served by that system to be integrally involved in the system — to understand it, to take ownership for it in the broad sense in that they know where their water comes from, what the threats are and what they personally and as a community need to do to protect that water.

What had happened in those cases is water was being taken for granted, even in the municipally treated world. That led to a tragedy — a loss of oversight and a loss of a lot of things. I do not think a sledgehammer approach is appropriate, and that is not what those very in-depth inquiries recommended.

Senator Dallaire: Is it your impression that perhaps some of the lessons learned from those tragedies — that is certainly what you would base wanting to rectify the problem on — some of those overt lessons known nationally and the solutions that were brought forward, might not have been studied by the INAC staff who implemented and put this legislation together?

Ms. McClenaghan: I would not suggest that they have not studied them; I am assuming they are well aware of them. There was a study paper, even before the expert panel, proposing source protection and a multi-barrier approach for First Nations water. Unfortunately, it has not been implemented yet.

That is the fundamental lesson we took for protecting water here and everywhere else — that we need, as Ms. Bowden referred to, a multi-barrier approach. That has to do with the culture, the training and the way the labs look at monitoring who knows about those results; that is what gives you safe water.

Senator Dyck: Thank you for your presentations this morning, ladies. They were very clear.

I would like to follow up on what Senator Dallaire was talking about. From your answers, it seems that you do not think that we need such extreme regulation as appears in the bill. Could you elaborate on how we could incorporate — or could we even incorporate — within this bill the lessons that we learned from other water incidents such as the Walkerton example that you raised this morning? Is there a way that we can put that kind of information into the bill to improve it?

Ms. Bowden: There is a difference between taking jurisdiction in the manner that has been taken here and providing leadership. In that regard, there is an extremely important role for the federal government; I am strongly supportive of the federal government stepping up here and taking responsibility to coordinate efforts regarding the provision of safe drinking water on First Nations lands.

The jurisdictional milieu in which we find ourselves with water in this country is a constitutional reality. This legislation offers an opportunity for us to draw upon the strengths of the federal government in terms of water management and to draw on that which has already been done by First Nations themselves in taking responsibility for clean water on reserves and working in partnership with the province, when possible, for support.

Saskatchewan has an example of that involving training. Some of the training of First Nations water operators is done by the province with the cooperation of INAC or individual tribal councils. The training for all operators, be they on-reserve or off-reserve, is done at the same location. They go back to their individual reserves, and the Circuit Rider Training Program, CRTP, is in place to help reinforce that. However, the relationships are established at the grassroots level among classmates, which permits phone calls to the nearest off-reserve operator to say, for example, "Charlie, I have a problem with X; can you tell me what you have been doing?"

Jurisdictional problems arise in wondering whether the province will go onto the reserves or not. That does not matter when you have a relationship with someone by virtue of being their classmate; you have conversation.

We can learn that, yes, we are faced with is this constitutional dilemma of the left hand doing this and the right hand doing that. What we have failed to establish and what we can build on are the relationships that would allow us to help each other among the three levels of government in moving this thing forward without a more stringent approach by any particular level of government as to their jurisdiction.

Senator Dyck: I believe it was you, Professor Bowden, who said that we have a variety of communities with diverse needs and that some communities already have the infrastructure and resources and could potentially move forward with regulations because they have all the other necessary elements to create safe drinking water.

What can we do with Bill S-11 to allow some communities to proceed but perhaps not others? Is a blanket bill necessary, or is there a way of creating a bill that allows some communities to start and others to not start until they say that they are ready or until they are ready to sign an agreement or MOU that states that they wish to participate?

Ms. Bowden: Yes, I think that is possible in legislation. I describe to my students that an act is like the skeleton and the regulations put the flesh upon that skeleton. I do not want to continue with the metaphor because it gets messy.

By providing this separate commission, we could draft the regulations with the assistance of the commission to take into account that full spectrum. You want legislation that says that we can develop regulations in relation to monitoring, water standards, et cetera, sort of the broad-based buttons that should be pushed to provide safe drinking water. You then move into the regulatory stage where you put the flesh on the bones and add the commission, which would negotiate agreements between the parties to see that done as the capacity grows rather than imposing a top-down type of approach that says, "You are the owner." You cannot deem someone as the owner if they are not prepared to take ownership and are not in a position or have not established the capacity to take ownership. It is a recipe for disaster. It is an easy way to download liability, but it is a recipe for disaster.

Senator Dyck: With respect to the commission, to have one that should be a neutral body, who should decide who the members are on the commission? How would you ensure that the commission is balanced and represents the interests of First Nations as well as those of the provincial and federal governments?

Ms. Bowden: I think the appointments could be jointly made by the First Nations and the federal government.

In a similar example, we had the Canadian Environmental Assessment Act, which was bare-bones legislation, so we had the question of what to do about regulations. The federal government, in concert with the Canadian Environmental Network, established a Regulatory Advisory Committee that consisted of some government members from departments that were directly impacted, as well as environmental groups across Canada. First Nations also had appointed representatives. Again, it was mutually agreed upon, and these folks sat down and hammered out exactly what this legislation would look like through the regulations. It worked, and it continues to work.

Senator Sibbeston: I want to focus on the protection provided to the government in the legislation. Three of the 14 clauses of the bill provide for limits on liability to the Crown. Are these protection clauses typical of water legislation that exists in our country?

Ms. McClenaghan: There usually are some provisions for limit on liability of the Crown or particularly officials acting in good faith. However, I thought there were more and broader provisions than I normally see. It added to the impression of the bill as a very lop-sided bill, namely, that it was much more about top-down rather than a balanced approach to First Nations working in concert with federal government departments and provinces for a way forward. That was my impression.

Ms. Bowden: What struck me is the problem associated with saying, "We will deem you owner of a particular work or system." With ownership comes liability. That is fine if I have the ability to manage that system and keep it safe. However, if I lack the capacity to do so, you are downloading the responsibility without the requisite skills in order to limit that liability. That is unfortunate. Similar to Ms. McClenaghan, I found the bill to be extremely lop-sided in terms of the liability clauses.

Senator Sibbeston: The other issue I was concerned about is that we have had many Aboriginal witnesses before us. Considering that this is a water bill, they did not really talk about water as such; their presentations were all about rights.

The first witness indicated that the non-derogation clause is weak and does not give any comfort to First Nations as compared to an act in Ontario. There was also a question about whether it would violate or be contrary to the constitutionally protected Aboriginal rights that exist in our country. Can you clarify that? Is that really true?

Ms. McClenaghan: I think it is. I have a concern that the section 35 Aboriginal and treaty rights of the Constitution may well encompass rights to take action and protection of resources, and that would include water. To have a system that talks about the ability of the federal government to unilaterally impose certain methods of management may well interfere with the ability of that First Nation to exercise environmental management or drinking water management as a section 35 right over and above how we think it should work, but as a constitutionally protected right. That was one concern I had.

Second, the fact that the bill provided the derogation clause that it provided I thought offended the Constitution in and of itself. Professor Bowden can expand on that.

Ms. Bowden: I had a short period of time to prepare for this, so I took this to several of my constitutional colleagues at the college, and not only does this clause propose to derogate from the Constitution within an act, it actually says that we can derogate in regulation. They were surprised, to put it mildly, by the inclusion of such a clause.

In my opinion, it is a poke in the eye. There is no reason for it to be included. There are situations wherein one can constitutionally justify the derogation of rights. Those arise on a case-by-case basis and would more than likely be challenged, but there are situations where it is justified. To propose to put a blanket provision in an act such as this, quite frankly, I have trouble understanding the motivation.

Senator Brazeau: Good morning. I have a question for each of you.

Ms. Bowden, you mentioned that perhaps the federal government should start building systems on-reserve. However, how do you reconcile the government building those systems and putting infrastructure in place before handing it over to the First Nations themselves? First Nations people have told us that they need to be consulted and accommodated. They have also put forward a position that they do not want to be prescribed to.

Ms. Bowden: I am not sure I said that they should come and build systems on-reserve. I said they should build systems in cooperation with people on the reserves. There is a big difference.

I was at a conference dealing with international development. I will paraphrase, but they talked about Canada going into India at one point and seeing that wells were needed in a town. It was decided that the best possible place to build a well was in the local religious centre.

The Canadians went in and dutifully built the wells within the religious centre because it was clean and had good source water protection for the immediate area. They came back a year later and the women were still walking for miles to get the water to bring to the town. When they asked why that had happened, the response was that women are not allowed in the religious centre, and it is women's work to get the water.

Therefore, the well was not being used because there was no consultation with the people getting the water, using the water and those allowed in the religious centre.

This is a situation where needs vary from reserve to reserve. We have people there who offer a level of expertise and knowledge. There are also people within INAC. In talking to people in INAC, they can tell you what very simple solutions might be to otherwise expensive problems.

Two different ways of approaching it are the following: "We are from the government, and we are here to help you"; and "We are from the government, and we want to talk to you about what to do to assist you." If either of those are done, then the mutual respect will lead to better results.

Senator Brazeau: Would you not agree that, since 2006, that is exactly what the department has been doing with First Nations communities in having spent, to date, close to $2 billion on improving the water quality and waste water systems?

Ms. Bowden: Yes, I think they have been doing a great job so far. It has to be done on a case-by-case basis. The physical infrastructure is needed, but it goes beyond that to training, monitoring and considering, for example, whether backup provisions exist when your operator leaves. Some of my students told me that they had a trained operator but could not keep them on-reserve because they get a better offer elsewhere. Once they are trained, there are opportunities off-reserve.

Do we have a backup system? Do we have one that fully supports the Circuit Rider program? Do we have a relationship with the province so that we can go back and forth in an emergency?

Bottom-up is much better than top-down.

Senator Brazeau: Ms. McClenaghan, you mentioned clause 4(1)(r), as have other witnesses.

If I read that clause, it says the following about the regulations:

(r) provide for the relationship between the regulations and aboriginal and treaty rights referred to in section 35 of the Constitution Act, 1982, including the extent to which the regulations may abrogate or derogate from those aboriginal and treaty rights;

I view this bill as a health and safety issue first, not necessarily a rights issue. However, when I read this clause, if this bill were to be passed, regulations would be developed jointly between the Government of Canada and First Nations communities themselves.

To the extent where there might be an abrogation of Aboriginal treaty rights, I asked the other witness what rights might be infringed upon. I did not get specific answers, unfortunately. Regardless, if First Nations people will jointly develop these regulations, would you not agree that there may be a situation where the derogation of their rights may come from First Nations communities themselves?

I do not foresee it happening, but I could foresee it happening in the case of health and safety issues. If that were the case, I think health and safety would take precedence over Aboriginal treaty rights and would be justifiable under section 1 of the Charter. Could you comment on that?

Ms. McClenaghan: There is a potential for that, but, first, it does not need to say so in this legislation. Second, Aboriginal and treaty rights are collective. If the First Nation comes up with a solution in partnership with the province and the federal government, it is my opinion that that will not amount to an abrogation or derogation of Aboriginal and treaty rights. Rather it is an exercise of those rights, particularly the environmental governance and management rights that I say could be part of the Aboriginal and treaty rights, in certain cases, protected in section 35.

I agree that health and safety are paramount. In all of levels of government, including First Nations governments, there would be times when a band council, a municipal council, a provincial government or the federal government may make decisions that impinge on someone's individual freedom to do a particular activity next to the drinking water well, for example. However, in my view, that does not amount to an abrogation and does not need to be done in a way that amounts to an abrogation of Aboriginal and treaty rights.

Senator Brazeau: If there was a non-derogation clause, would that ease your concern about clause 4(1)(r)?

Ms. McClenaghan: Yes.

Senator Brazeau: If there was such a non-derogation clause and a situation were to arise where there would need to be an abrogation of Aboriginal and treaty rights for the health and safety of community members in a given community, how would we get beyond that?

Ms. McClenaghan: I find it hard to imagine that we would ever get to that point. In the analogue for provincial drinking water legislation, we do not have to do that. We do not have to provide in that legislation explicitly in advance that we may impinge on people's Charter rights. In fact, whatever it was that would impinge on people's Charter rights, if it did, would be found to be unconstitutional, unless the notwithstanding clause had been used for those particular sections for which it could be used, and then another way around would have to be found.

Given that there is a lot of flexibility in terms of how you do drinking water protection, you can do it without abrogating First Nations Aboriginal and treaty rights.

Senator Dallaire: We keep coming back to this fact about water and rights. There seems to be a debate on this legislation about the question of rights and that of water.

Canada finally agreed to the international convention that water is a fundamental human right. The whole over-encompassing exercise of this is rights; namely, a right to water, which is a fundamental right of humanity. These other rights are within that.

It is not the fact that it is safe or unsafe but rather that having potable water is an international convention that took us time to sign, although we did signed. The only way we are getting around it is because we have not put that convention into law in this country yet.

I do not agree with this continuous raising of the issue that rights are inappropriate in the debate of this security of water because the issue of rights is the essence of the whole exercise. The right to safe water is an international convention, and that overrides the exercise; it is not about the debate that we have internally here.

Ms. McClenaghan: I agree.

Ms. Bowden: I agree, too. Take it out.

The Chair: Thank you both of you for your excellent presentations and your straightforward answers. Hopefully they will assist us in coming up with a piece of legislation that meets the requirements of everyone to have water considered potable from an international perspective.

On our second panel today, we have Mr. John Paul, Executive Director, Atlantic Policy Congress of First Nations Chiefs Secretariat, APC. He is joined by the Assembly of Treaty Chiefs of Alberta, represented by Mr. Cameron Alexis, Chief, Chiefs Committee on Water; and Mr. Clayton Leonard as counsel. Finally, from Manitoba, from Manitoba Keewatinowi Okimakanak Inc., MKO, is Mr. Michael Anderson, Research Director; and Mr. David Harper, Grand Chief.

We will start with Mr. Paul. I would ask you to keep your presentations to the five minutes the clerk told you about. If you run to six we will tolerate it, but if you run to seven we will get excited.

John Paul, Executive Director, Atlantic Policy Congress of First Nations Chiefs Secretariat: I am the executive director of the Atlantic Policy Congress of First Nations Chiefs Secretariat. My co-chairs send their regrets; one is in the hospital and one is in a community meeting.

Our organization represents 38 Mi'kmaq, Maliseet, Innu and Passamaquoddy First Nations communities across the Atlantic region. They share the mandate to research, analyze and develop alternatives to federal policy affecting its members.

Our member chiefs support the concept of Bill S-11 but, like many other First Nations and organizations, have concerns about its content. In anticipation of upcoming legislation and possible regulatory changes, APC contracted Dr. Graham Gagnon from the Centre for Water Resources Studies at Dalhousie University to conduct a regulatory review and a gap analysis for First Nations water and waste water systems in Atlantic Canada.

The objectives were to identify potential benchmarks based on provincial regimes for various regulatory components, such as operator certification, source water protection and waste water, that would ensure public and environmental health. Furthermore, he was to review the current state of systems in Atlantic Canada and to help identify the gap between existing conditions and anticipated regulatory benchmarks. Dr. Gagnon reviewed the draft national engineering assessments for all our communities and based his analysis on what would be acceptable by provincial regulations and standards.

The current 2010 draft national engineering assessments, conducted by Neegan Burnside Ltd. for INAC, were used to produce a summary of key parameters and components. At the same time, evaluations were conducted on all systems, providing a low-, medium- or high-risk rating based on the weighting of five different risk-level criteria: source water — or effluent receiver for waste water — design, operation, reporting and operators.

Upon close examination and thorough case studies of systems within the three risk levels, it became clear that the systems designed as medium risk should also be considered high risk, as they often have issues that pose a serious human or environmental health risk. The majority of the low-risk systems were under municipal transfer agreements, which means treatment — and often distribution — is provided or managed by a neighbouring municipality according to provincial regulations. For those managed by First Nations, only two low-risk systems exist. Out of 23 communal systems, 21 are at high risk from Dr. Gagnon's conclusion in this study.

Further review revealed that 50 per cent of the systems have an operator with adequate certification; only 11 per cent of the systems have source water protection plans, and 15 per cent have access to hydrogeological assessments. It is therefore not surprising that in 58 per cent of the systems they do not know whether their groundwater is under the direct influence of surface water. Wells that are considered DI, direct influence, should be treated as surface water systems and thus require further treatment than groundwater sources.

The vast majority of drinking water systems failed under The Guidelines for Canadian Drinking Water Quality, mainly due to low disinfection residual, the presence of coliforms or increased turbidity, all of which indicate the potential for public health impacts and unsafe drinking water.

Monitoring and reporting within both water and waste water systems was far below the guidelines published within the Protocol for Safe Drinking Water in First Nations Communities, with less than 50 per cent of the systems monitoring for microbial quality and disinfection residual in the distribution system. Without monitoring these parameters, a community cannot ensure safety of their drinking water.

Based on the review and analysis of the draft national engineering assessments for our communities, it has become apparent that there is a large gap between the current state of existing systems and what would be required to meet any sort of legislation, regulation or even compliance.

The capital cost required to bring both water and waste water systems into compliance with any proposed legislation will be great, but it will be overshadowed by the difficulty and cost of proper operation and maintenance going into the future. It is the management and decision making for these systems that often causes the highest risks.

The provision of safe drinking water and effective treatment of waste water is critical in ensuring the health and safety of First Nations people and lands. Legislation for drinking water and waste water has been developed for the provinces and territories, but it has yet to be developed for our communities.

Although the establishment and implementation of both legislation and regulation for First Nations communities needs to be addressed, the challenges will still remain the same regardless of the approach; financial and human resources and capacity are limited, and liability and responsibility are of great concern.

If approached provincially, the legislation and regulations would lead to different levels of service and health and safety risks for communities based on their geography. To address this inequality, it is recommended that the implementation of new regulations be conducted through a regional or provincial First Nations entity rather than on a community-by-community basis. The entity could then set standards that would meet and in some cases exceed provincial standards in large First Nations communities, such as in Cape Breton and Halifax.

Based on the extensive review of the Atlantic First Nations water and waste water systems, it is clear that the gap between current practice and future legislation and regulations is very large. Issues exist in all aspects of design, operation and maintenance of the systems; thus, there is not a one-size-fits-all approach that can be taken. The capital costs for compliance with proposed legislation and regulations can be determined based on required upgrades, but without a proper management structure, training and support, the systems will continue to be vulnerable regardless of capital expenditures. The majority of the challenges and uncertainty rely on the management component of plant operations, which is currently non-existent in the communities studied.

Again, the comparability between the national assessments and what would be acceptable within provincial regulations or standards is clear. Municipalities within these provinces would not tolerate such outstanding issues and concerns with both water and waste water systems. The current conditions in First Nation communities have been an ongoing issue for the past decade, and we are no further ahead.

If these issues and concerns with First Nations water are not addressed, we could see another First Nations Walkerton situation happen while the government waits to develop legislation and regulations. The liability to manage such risk is too great to place on First Nations communities alone.

Moving ahead on the legislation and regulations should be a three-pronged approach: clarity of language used in the legislation — limitations on Aboriginal and treaty rights and consultation; development of a clear management plan and First-Nation-by-First-Nation action plan to remediate the issues and concerns identified in the national engineering assessment report; and creation of an education and awareness for First Nation leaders and community on safe drinking water.

In closing, we believe it would be irresponsible for the Government of Canada to proceed with Bill S-11 in its current form without first ensuring that First Nations are provided with adequate human and financial resources to fulfill the new responsibilities and risks.

We thank the committee for giving us this opportunity to express our concerns. We strongly urge you to seriously consider the significant legal and financial implications of the bill on both the Government of Canada and First Nations governments and not have it passed into law in its current form.

David Harper, Grand Chief, Manitoba Keewatinowi Okimakanak Inc.: I am the Grand Chief for the Manitoba Keewatinowi Okimakanak Inc., an organization of 30 communities in Northern Manitoba and a couple of communities in Saskatchewan.

I want to say good morning on behalf of the 30 Northern Manitoba First Nations and the 65,000 First Nations citizens represented by MKO. Thank you for the opportunity to make this brief presentation on Bill S-11. MKO also wishes to speak to the committee about the meaning of the treaties and the honour of the Crown and about how we must work in partnership to ensure that no First Nations citizen lives in Third World conditions, and that every home in every First Nation has clean, running water and adequate waste water treatment facilities.

Adequate water and sewer services are essential for healthy First Nations communities and to help eradicate the poverty and the economic and social disparity that exists between First Nations and other Canadians. In a country such as Canada, access to clean, running water is a basic human right. It is also a treaty right. Living in Third World conditions in Canada in the 21st century is totally unacceptable.

About 1,000 homes in Northern Manitoba First Nations still have no running water, and many of these homes have no plumbing of any kind. Northern Manitoba First Nations have the highest average number of homes that are not connected to water or sewer systems in all of Canada.

It is unacceptable that such conditions would exist in Northern Manitoba First Nation communities surrounded by the resource wealth of Manitoba. In Northern Manitoba alone, there is $3 billion a year from the sale of natural resources, comparatively little of which is shared for reinvestments in Northern Manitoba First Nations.

Northern Manitoba First Nations entered into treaties with the Crown because we were promised that we would share the lands and resources. By entering into the treaties, we established a covenant to build a nation together. It is time for Canada and the Province of Manitoba to honour the treaty covenant by reinvesting the wealth of our treaty territories to bring clean, running water and basic community infrastructure into every home in our First Nations.

Almost all of the homes without running water in Northern Manitoba First Nations are in the Island Lake First Nations where we had two confirmed deaths last year due to influenza A (H3N2), and more people are becoming sick with the flu every day.

The lack of running water and basic community infrastructure jeopardizes the health of everyone living in these First Nations communities. The severe impact of the 2009 H1N1 pandemic on the Island Lake First Nations shows how the lack of running water and basic infrastructure contributes to the sickness and disease spreading rapidly throughout the communities. The health risk also spreads when our citizens must travel to urban centres for treatment or hospitalization.

The impact of living without clean, running water has recently been highlighted in a special series of articles in the Winnipeg Free Press, entitled "No Running Water," as well as by an MKO press conference held on Parliament Hill on December 15, 2010.

In response to this increased public awareness of the Third World conditions being experienced by thousands of First Nations citizens in the Island Lake area, many members of the Mennonite community and officials of the Mennonite Central Committee Manitoba, MCCM, expressed their concerns. These concerns include significant adverse effects on the health and well-being of residents of the Island Lake First Nations. Concerns were also expressed at the inequities and injustices represented by the lack of running water and the lack of basic infrastructure in these First Nations communities.

On January 14, 2011, MCCM held an open forum at the Bethel Mennonite Church in Winnipeg, Manitoba. The theme was called "Just Water: challenges in the Island Lake communities." More than 100 people attended the gathering, including representatives from the United Church of Canada.

During the open forum, MKO asked for the engagement of the Mennonite Central Committee Manitoba. MKO told the participants that the First Nations are not looking for a handout. MKO's message resonated with the participants, particularly the MKO statements that "all we're asking is to share the wealth, to go back to the treaties . . . we are simply asking the general public, the government, to acknowledge that there is a covenant."

Although MCCM is best known for its work on international community development and disaster relief projects, it is MKO's understanding that the campaign to bring clean, running water into thousands of homes in Northern Manitoba would be MCCM's first major project in Canada.

MKO applauded Canada's November 12, 2010 endorsement of the United Nations Declaration on the Rights of Indigenous Peoples. The declaration provides that indigenous people have the right, without discrimination, to the improvement of our economic and social conditions, including housing, sanitation and health.

To give effect to these rights, Article 21 of the United Nations declaration provides the following:

2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities.

The lack of running water and the resulting additional risks to health in many Northern Manitoba First Nations are a violation of the United Nations declaration and of our rights as indigenous people. It places the health of our elders, children and other citizens at greater risk.

The Northern Manitoba First Nations are requesting that the United Nations investigate the violations of our human rights and of our treaty and indigenous rights due to the health risks that we experience because of a lack of clean, running water in many of our homes.

The Minister of Indian Affairs and Northern Development was quoted in the media as saying, "We just can't fix everything overnight." How many years and how many thousands of "overnights" have Northern Manitoba First Nations already waited, and how many more nights do we have to wait before the Government of Canada decides to take action to ensure that there is clean, running water in every house in Northern Manitoba First Nations?

How many more people in Northern Manitoba First Nations must get sick with the flu or other diseases just because they cannot wash their hands before the Government of Canada will take action and work with First Nations to make a plan to protect the health of our children and our communities? What will it take for the Government of Canada to make a firm commitment to work with our First Nations to bring clean, running water into every house in Northern Manitoba First Nations?

How can we make this happen? How can we get the job done? This committee, the expert panel on safe drinking water and previous First Nations presenters on Bill S-11 have recognized that it is all about adequate resources. It is all about ensuring there are adequate water and waste water treatment systems, trained operators and the resources to operate, maintain and upgrade these systems. This must be the first priority.

Manitoba Premier Greg Selinger also has an important role to play in bringing clean, running water into every house in Northern Manitoba First Nations. For example, in Ontario, a series of Canada-Ontario retrofit agreements between 1992 and 2001 ensured that many remote Northern Ontario Aboriginal and First Nations communities had adequate water, sewer and electrical services. By 2001, the Province of Ontario invested $60 million to retrofit and hook up 3,800 homes to water, sewer and electricity services in 35 remote Northern Ontario communities.

he attached November 5, 1991 letter from the Minister of Indian Affairs and Northern Development and the December 9, 1991 reply of the Ontario Minister Responsible for Aboriginal Affairs highlights the mutual commitments of Canada and Ontario to invest in water and waste water systems in First Nations communities.

On December 17, 2010, Manitoba's Minister of Aboriginal and Northern Affairs publicly stated that Manitoba is prepared to work with Canada to bring clean, running water into every home in every Northern Manitoba First Nation within two years. Northern Manitoba First Nations are urging Minister of Health Leona Aglukkaq and Minister of Indian Affairs and Northern Development John Duncan to make a commitment to work in partnership with the Province of Manitoba and to come to an agreement to bring clean, running water into every home in every First Nation in Manitoba in two years.

We are asking this committee to join with the Northern Manitoba First Nations in calling on the responsible ministers and the federal government to immediately announce Canada's commitment to work in partnership with the Province of Manitoba and our First Nations to achieve the goal of bringing clean, running water into every home in every Northern Manitoba First Nation within two years.

The Northern Manitoba First Nations acknowledge and welcome the involvement of MCCM. With their involvement and by working together with Northern Manitoba First Nations and the governments of Canada and Manitoba — and with the support of this committee — I have faith that we can bring clean, running water into every home in Northern Manitoba within two years.

Bill S-11 will not deliver clean, running water into 1,000 homes in the Island Lake First Nations communities.

The First Nations already make and enforce laws and can make regulations for water systems. The availability of clean, safe and adequate supplies of water has always been central to our survival as nations. The protection of water is a sacred and paramount requirement under our customary law.

MKO recommends that Bill S-11 be amended to provide that the enactment of any regulation further to a recommendation of a minister is "upon the advice of the First Nation" and subject to the "consent of the council of the First Nation." This approach is reflected in numerous provisions of the Indian Act that require that the exercise of a specific ministerial discretion is subject to "the consent of a council of a band." By requiring that a First Nation must provide its consent, the result will be that a First Nation or First Nations that will be affected by any regulation will develop or collaborate in the development of the regulation.

Bill S-11, in clause 4(3), provides for regulations that "may incorporate by reference laws of a province," and, in clause 5, the minister "may enter into an agreement for the administration and enforcement of regulations . . . with any province, corporation or other body."

MKO urges this committee to request that INAC immediately provide the results of the Neegan Burnside Ltd. assessment of the status of First Nations water and waste water systems to the committee and to the Assembly of First Nations and that INAC immediately provide the results of the respective individual community assessments to each First Nation.

In particular, MKO agrees with the previous recommendation of this committee that the delivery of safe drinking water in every First Nation should be a dedicated initiative by INAC and should be a precondition to implementation of any new legislative framework, including the regulatory framework proposed in Bill S-11.

MKO also recommends that the committee recommend that Canada and Manitoba each immediately and publicly communicate their intention to develop and enter into a Canada-Manitoba retrofit agreement to ensure that every house in every Northern Manitoba First Nation has clean, running water within two years. Also, the committee should recommend that Canada and Manitoba work with the MKO First Nations and MKO to mobilize the initiative to bring clean, running water into every home in every Northern Manitoba First Nation within two years as soon as the 2011 winter roads are open.

For the health and the well-being of our communities and our children, let us work in partnership to eliminate the Third World living conditions for all First Nations citizens in Canada. Let us make a commitment to work together in partnership to bring clean, running water into every home in every First Nation in Canada within two years.

Ekosani. Masi-cho. Meegwetch. Thank you.

Cameron Alexis, Chief, Chiefs Committee on Water, Assembly of Treaty Chiefs of Alberta: Thank you all. I want to thank you for allowing me to present to you. I will be very brief. As you have heard, I represent 47 First Nation Chiefs of Treaties 6, 7 and 8 in Alberta.

Our main concern is that Canada has snubbed repeated offers from First Nations in Alberta to be partners in developing drinking water legislation. We took great care in preparing our Impact Analysis in 2009. I have a copy before me.

Bill S-11 will not work for several reasons. First, provincial drinking water legislation is failing rural Albertans and was never drafted to fit the First Nations context. How can it be the solution? Incorporation by reference will likely involve the Government of Alberta in some way, a government that consistently fails to work with First Nations on critical water issues, a government that has actively worked against First Nations water rights, including our right to clean water.

First Nations have no role under Bill S-11. We will not be left out of governance of water in our communities and on our lands. Regulation without adequate resources can only make the situation worse not better. Canada should have completed a national engineering assessment first, developed a plan to address the resource gap and then addressed the regulatory gap.

We cannot accept Bill S-11 on a principled basis. Is this the new model for developing First Nations legislation — two or three days of consultation, ignoring input from First Nations and failing to include a non-derogation clause to protect our treaty and Aboriginal rights?

There is no role for First Nations in this legislation. The Assembly of Treaty Chiefs of Alberta has always shared Canada's goal in wanting to ensure that First Nations have safe drinking water. We have agreed that there is a need to fill the regulatory gap. For four years, we have consistently communicated our willingness to work with INAC on this important issue, only to be ignored.

However, senators, we believe this bill is so deeply flawed that you face only two options: Either revamp it significantly, or send it back to the government for more work. This bill creates a false choice for First Nations as it asks us to accept potential erosions of our constitutional rights as a condition to getting safe drinking water.

Senators, I ask you to consider the reaction among other Canadians if you posed a similar ultimatum to them: We will deliver clean water if you agree that the federal government can diminish your rights under the Constitution.

Bill S-11 is almost completely void of content. It provides no sense of how Canada intends to ensure the safety of First Nations drinking water. Canada says that the bill is enabling legislation. However, it is so broad and lacking in detail that it effectively enables Canada to do what it wants, when it wants, with whomever it wants and without regard to First Nations rights and interests.

At the same time, Canada has not presented a clear plan as to what it will do under the bill, how it will do it, how it will fund it — if at all — and who it intends to have act as the regulator. The bill is simply a blank cheque of authority. Essentially, Canada is saying to First Nations, "Just trust us."

Simply imposing regulatory standards will not ensure the safety of drinking water for First Nations communities. Many First Nations lack adequate financial resources to ensure that the operation and maintenance of our water systems can meet provincial regulatory standards. What is Canada's plan to address the resource gap in tandem with the regulatory gap? We do not know. Apparently, neither does Canada.

We are also skeptical that Bill S-11 will create an effective regulatory regime for First Nations drinking water in Alberta. The provincial regime regarding the use of water wells consists mostly of voluntary guidelines and was created to govern the use of individually owned water wells in rural Alberta.

The Assembly of Treaty Chiefs has also repeatedly expressed our concern that the incorporation by reference of provincial laws may result in the imposition of provincial water allocation and licensing laws on First Nations. Bill S-11 must not be a vehicle by which Canada assists Alberta with its assertion of ownership over our water resources on our reserve lands. This would undermine the spirit and intent of the treaties.

Incorporation by reference under Bill S-11 is broad enough that the Governor-in-Council could deem it necessary to incorporate provincial water allocation laws. Canada's discussion paper for the engagement session also clearly contemplates that the provincial water allocation laws will be imposed on First Nations under the bill.

We want this committee to know that INAC, at the highest level, assured Alberta First Nations, in a January 20, 2009, letter, that water allocation and licensing issues fall outside of INAC's mandate and therefore will not be included in the proposed legislative framework.

Bill S-11 mentions the protection of First Nations source water in only the most general of terms; the bill lacks substance in this regard. Alberta First Nations want to see more clarity in Bill S-11 as to how the legislation will protect First Nations reserve source waters.

Bill S-11 is also viewed by Alberta First Nations as an erosion of our treaty rights, inherent rights of self-government, particularly with respect to waters on our reserve lands.

Alberta's First Nations want the bill changed to include a strong non-derogation clause, and we want to work with Canada to develop other fundamental changes to the bill to provide First Nations with a meaningful role.

In your earlier report, Safe Drinking Water for First Nations, this committee recommended that INAC undertake a comprehensive consultation process with First Nation communities and organizations about legislative options, including those set out in the reports of the expert panel on safe drinking water and the Assembly of First Nations, with a view to cooperatively develop such legislation. The one-day engagement session held in Edmonton in 2009 cannot, by any measure, be considered a comprehensive consultation process.

INAC offered no response to the Impact Analysis prepared by Alberta First Nations. Canada has not consulted with Alberta First Nations about the legislative options. Therefore, we ask that the committee consider our proposal for changes to the bill included in your written submission; and we ask that you carefully review and consider the Assembly of Treaty Chiefs' Impact Analysis that has been ignored by Canada in the course of developing Bill S-11.

The Chair: Thank you, chief. I will ask a question of Grand Chief Harper. I realize that you have a horrific situation to deal with in Northern Manitoba. However, if you are to establish a system, you have to have regulations.

In fairness, I hear what is being said, namely that there was not satisfactory consultation. However, it is just like having a police force; they need rules and regulations that they will enforce.

This is a first step. I am not saying that it should be acceptable to you in its present form, but do you not agree that we need regulations?

In 2006, we ended up with a disaster on our hands. It was a nightmare. The federal government has recognized this. They put $2.6 billion, which is a lot of money, into trying to correct this situation.

Do you agree that we need regulations and the sooner the better? I am not trying to corner you into saying that this is the right route. Do you agree that without regulations, we will not go anywhere? If you cannot enforce what is being done, it is virtually a redundant situation. Would you mind commenting on that, Grand Chief?

Mr. Harper: Two nights ago, I drove by this elder's home, and he had to go down to the lake to get his water. This morning, as you were getting up, he had to boil his water. If any regulation is to come before us, we should regulate it. Nowhere in Canada should this still exist. Nowhere in Canada, one of the richest countries in the world, should this exist. Let us talk about that.

The Chair: Are you talking about regulating the source of the water or the fact that he does not have running water?

Mr. Harper: I am talking about both. We need to be included in any decision making and in any statements that are brought to this table or any table. The First Nations should be included first. Any regulation must be brought to my First Nation, while the decision makers are up here and while we are still struggling to get adequate running water into our homes.

We are making rules while we are still carrying these buckets of water and throwing out slop pails. We need to sit down at the table at the beginning, at the forefront, before any decisions are made. At the end of the day, the bill that will eventually come forward will require resources to ensure that these homes have adequate running water and waste water systems. We need to be involved right from the beginning.

Senator Sibbeston: Where did this legislation come from? It is as though INAC is completely running wild. It is legislation, a bill, that provides primarily for regulations. That being the case, would it not be helpful if everyone in Canada were able to see what the regulations are to be? They are outstanding, and it is powerful legislation. By this legislation, it seems we are giving the government and INAC the power to do many things.

If they want First Nations, who are concerned about what the government will do, to agree, it would be helpful if they would write down these regulations and show us what they will look like. As the bill is written, however, it is the same as giving INAC a blank cheque to do whatever they want. They are paternalistic, and they will override Aboriginal rights and all sorts of things that will be detrimental to the Aboriginal people of our country.

Where did this come from? There has been a progression in our country where the federal government has worked cooperatively with First Nations in designing legislation. We have seen that. When Minister Prentice was in INAC, we had the specific claims bill that was done in full consultation with First Nations in our country. The next bill was again in consultation with First Nations. We now have this bill that comes from the Minister of Indian Affairs and Northern Development that was completely done without consultation. Everyone who has been here has said that there has been no consultation. I am concerned about that.

I want to ask the gentlemen from Manitoba this question. I have been a minister in government, and I have dealt with the provision of water to small communities. It is difficult, but it is not impossible.

What is it about Northern Manitoba that people still do not have a water system? It is very simple; you can get a pump with a little tap in a little building on the edge of water that pumps water, chlorinates it and makes it available to people. That is the simplest system available, yet you are saying that they do not even have that?

Mr. Harper: No.

Senator Sibbeston: What is it? Is there something technical or difficult to providing water to the communities that you talk about?

Mr. Harper: There are 30,000 First Nation members that live in remote communities. Last year, we had a problem with the delivery of any goods into those communities because of climate change. Last year was the worst case that we have had. Even a small thing like influenza A killed two of our people because of the lack of essential goods delivered to those communities. Those are some factors, such as the lack of preparation.

Also, when INAC requires delivery, we only have that window of opportunity between now — even right now, as we speak, some of those community roads are not open due to the weather in the area. Those deliveries, the housing needs that are required in every First Nation cannot be delivered due to climate change. There are other factors involved.

Today, we still pay $2.49 per litre for gas in these communities, yet we still have to try to truck water delivery to at least people with special needs, children and elders. Then again, when you live in a Northern remote community, basically this is what you must accept. These are exactly the living conditions that you have to accept.

There is no light at the end of the tunnel where INAC has said that within the next five years, we will be on the radar screen. We are not even on it. Again, we have to make this a priority, that every First Nation home should have running water. It must happen. It happens everywhere else, when a disaster hits another country, for example, yet within our own homes, the lack of running water still exists. It must be made a priority.

The Chair: Mr. Leonard, do you have something to add?

Clayton D. Leonard, Counsel, Assembly of Treaty Chiefs of Alberta: I would like to respond to some of the comments and questions raised by Senator Sibbeston, if possible.

Senator Sibbeston raised a question about whether anyone has looked at provincial legislation. We really want to leave here with the Senate committee understanding that this work has been done. Canada provided some funding to Alberta First Nations, and we reviewed every possible provincial code, guideline and regulation that might be incorporated by reference. We talked to many First Nations water technicians in the province and met with the Chiefs Steering Committee on it. We matched INAC's funding out of our own pocket and then some.

The other question that has come up is what rights would be affected. Our Impact Analysis to Canada also addresses that question. One of the key water rights, in our view, that may be affected by this bill is the right to clean water. We are talking about incorporating by reference a provincial system that is already failing to protect clean water for First Nations. We referenced the recent case of the Siksika Nation in our brief, and I would encourage all of you to take a close look at that case. It is a case study for how the provincial regime is simply not looking after First Nations drinking water. The Alberta's Minister of Environment approved the discharge of waste water from a city of 15,000 people 500 metres upstream from a First Nation without any impact analysis or consultation with the First Nation. Siksika had to go all the way to the Alberta Court of Appeal to get the issues addressed.

Therefore, is that the model that will be a solution for First Nations? I think that is an important thing to look at.

Unfortunately, we sent this Impact Analysis to Canada and received a one-page letter back saying "thank you very much" but no response to any of the issues raised in it. We did not have a budget to translate it into French, but we would hope that some way can be found for the senators to have an opportunity to go through this because we do not want our input to be ignored yet again.

The Chair: Thank you, Mr. Leonard.

Senator Brazeau: Good morning to you all.

I have a question for Grand Chief Harper. On page 5 of your presentation, you mentioned that MKO recommended against the approach being taken in Bill S-11. Throughout your presentation you reference the expert panel and some of their recommendations. The expert panel put on the table three recommendations: new federal legislation setting out federal standards, federal legislation referencing provincial standards for clean water and the use of customary law.

Have you recommended against the approach being taken here? If this bill were to be passed, it would allow First Nations and communities to develop regulations with the Government of Canada. The regulations that First Nations people would be able to develop could be customary law or could reference provincial standards. They could even exceed the provincial standards.

I am trying to understand why you recommended against taking this approach when it appears to be an opportunity for First Nations to really provide their input in developing the regulations. I understand the concerns and the concerns brought forward by other First Nations people about resources. I do understand those. However, Bill S-11 is actually just a framework to start developing these regulations for the implementation of bringing clean, safe drinking water into those communities. Could you comment on that please?

Mr. Harper: On the bill itself, the First Nations need direct involvement right away before there is an act or anything comes to our communities. Until this very issue can be dealt with, especially in our homes, we cannot proceed.

I will go back a little here. Two years ago, the Manitoba Museum put a toilet as part of an exhibit. We are asking why they put that on display when we are still using those things; this is not history.

I go back to your question. We need the regulations before they look at regulating. Will they start regulating this also? I hope not. These are basic needs.

Before we start entertaining any other acts, we need to be on the front lines of making decisions, especially with the province. They should not be dictating rules, policies or anything — driving right into our First Nations. From the very beginning, we should be on the front lines.

Senator Brazeau: Correct me if I am wrong, but I was under the impression that, specifically since 2006, a lot of dialogue has gone on between First Nations communities and INAC. Significant resources have been spent, as the chair mentioned earlier. Money is still being provided for the development of clean water and waste water systems.

On the one hand, when I hear that you have to be there from the get-go, are you suggesting that you have never been consulted or had discussions on this with the department or the federal government, and that this is something new?

Mr. Harper: It is not something new. We are saying that sewer and water for these communities are not even on the radar screen — we are not even in the next five-year plan.

Let us sit down and put these First Nations at least on the radar and say, "Okay, this is how it will work and how it will develop."

How do you start putting rules in before any infrastructure goes in place? If Bill S-11 passes, can we include that First Nations communities such as these will have infrastructure put in place?

We need to develop a clear strategy where we are right in the forefront to ensure every home will be hooked up and have running water. If half of this room does not have running water, I will set these rules for the half that does not have it. That is what we are seeing from our point of view.

Senator Brazeau: Bill S-11 might not be perfect, but do you at least agree that it is a start to put those Northern Manitoba communities on the radar? I think bringing clean, safe drinking water to every First Nations community across Canada is the intent of this piece of legislation.

Would you not agree that it is a step forward or a start?

Mr. Harper: If it says that First Nations will have clean drinking water and waste water systems, I would agree.

Senator Brazeau: Thank you.

I have a quick question for Mr. Paul. Please correct me if I am wrong, but I was under the impression that the Atlantic Policy Congress was generally supportive of this piece of legislation to the extent that you even indicated the APC wanted to be used as a pilot project to move forward on this piece of legislation.

Before me, I have a press release sent by APC on June 3, 2010, saying that the legislation was well received, that it was a positive step and that the chiefs can work with INAC to attempt to address these areas and issues.

If I mischaracterized APC's position, please let me know. Given the fact that you have raised some concerns, is it the position of APC to continue working with the federal government to try to improve this legislation so that we at least have a framework with which to move forward?

Mr. Paul: Our chiefs do have concerns. We see a regulatory regime at some point in the future emerging from whatever will happen, and the chiefs see it as something important. We have all the concerns that all the other organizations and groups have across the country.

The big fear people have, or what comes up as part of our discussions with our chiefs, is whether whatever happens in terms of law or regulations will actually address the issues on the ground. From our analysis, that requires considerable investment. In spite of all our discussions with the government and officials in the region, it does not appear as though the importance of water is being communicated that clearly by the government.

Our chiefs look at that as a concern. For what we see happening in the future, I think our chiefs are very concerned about the safety of our citizens and the community. That is our priority. The current regime that exists, which is basically tied to the funding agreement that you signed, puts the leadership on the hook right now for what happens with water in the communities. Whether you have enough money or not today, you sign a funding agreement with the government that you agree to the current regime with protocols. There are serious problems with that.

I hope that whatever comes out of the system in the future is something that addresses the fundamental safety concerns in the community and addresses public safety in the communities in a way that does allow us, from a First Nations' perspective, to incorporate our fundamental beliefs — which are treaty and Aboriginal rights, our culture, our beliefs and our traditions — in whatever the regime will be in the future. Our chiefs see it from that perspective in terms of whatever comes.

I know in the study that we did to look at the assessment, we looked at the data from the general assessment in great detail. We find that when looking at the current regime that exists in the various provinces in Atlantic Canada, the gap is significantly wider than we even thought. That raises serious concerns on behalf of our chiefs. You ask yourself whether you are getting into a scenario where you are committing to something and also committing to being liable for any activity or outcome that may occur in the future.

Our chiefs have seriously re-examined the issue and agreed that we should be a bit more cautious and wait and see what will come out of this, and, at the same time, take an approach that is evidence-based in terms of what we are doing to see the scope of the problem in every one of our communities and also to propose an idea of how to address those things in real ways.

As Grand Chief Harper said, regulations or whatever rules come out need to be relevant and understood in each community. Kids, adults, elders, women and everyone in the community need to understand what those rules are and support them. Whether they come from government or ourselves, people need to understand that the issue of water is fundamentally important to all our communities and fundamentally important to our leadership.

Whatever happens and whatever gets done, I think our chiefs are committed to keep working on this issue to ensure that those situations that I described in the report are addressed.

Senator Brazeau: I can appreciate cautiousness. Having said that, what types of specific recommendations and solutions would you bring forward to this table today that would address the one or two major concerns that APC chiefs may have so that we can have a working document to move forward?

Mr. Paul: One of the fundamental things that we have been talking about with our communities is how to have a regime that creates an entity from ourselves, whether it is individual or multi-community, that empowers our people and our own institutions to take whatever regime and implement it across the board. It should be through our own institutions, basically, not just by a bunch of rules that exist in the sky, to carry that out and implement it fully for the benefit of all our communities.

Senator Dyck: I think that anyone who is watching this broadcast would be dismayed to hear that there are 1,000 homes that do not have running water at all.

What is being done now to help those communities where we do not have running water? Will Bill S-11 actually help those communities?

From what we have heard so far, it does not sound as though Bill S-11 will help them because it says that it is an act respecting the safety of drinking water on First Nations lands, but in fact it is a misnomer. It should be entitled an act to establish regulations to ensure the safety of drinking water on First Nations lands. It is not establishing the infrastructure or providing the resources.

I think, Mr. Harper, you made it clear that you need the infrastructure. The gentleman going to the frozen lake this morning to get water will not benefit by Bill S-11. Would you agree with that?

Mr. Harper: Yes, there is no rule, there is nothing intact; there is no infrastructure. Infrastructure is an important part of this bill. Infrastructure should be included in the wording; we brought forth that we need infrastructure.

Mr. Chair, I would like to include my submissions in their entirety for the record and for the proceeding.

The Chair: Do members accept these photographs as presented, that they form part of the record?

Hon. Senators: Agreed.

The Chair: Thank you.

Senator Dyck: What is being done now to help communities such as the ones you have mentioned?

Mr. Harper: Right now, we are into the winter road season, so all our communities are waiting for the roads to open. As we speak, in four communities representing 10,000 people, there is not any running water.

Those four communities are in this emergency state. What will happen in that one region in Northeastern Manitoba is that first one community has to get running water; then the second community will wait for the next two years while this first project is being finished, and then the third one has to wait the next two years, and so on until it reaches the last community. They rotate; that is why there is such a backlog.

The last community will wait for eight years before any infrastructure is done in their community. INAC tells us to wait, we have to do this community first and then that one. There is no light at the end of the tunnel here. We have to wait for eight years for the next work that will come around the region.

The Chair: Colleagues, I know this is part of the debate, but let us try to stay on the legislation as much as possible. I am not trying to diminish the importance of what Grand Chief Harper is saying, but I would like to stay focused on the legislation that we are trying to sort out here.

Senator Dyck, did you have another question?

Senator Dyck: No, I have a comment. It sounds as though INAC has made all the decisions for you. You are saying that some communities have to wait eight years, and that you do not have the sort of consultative process whereby you can speed that up.

Mr. Leonard: I wanted to address some of the comments and questions that have been raised by the senators.

The Chair: I will go to Senator Raine, and then you can make a comment.

Senator Raine: It is obvious listening to you — which is something I have known all along — that the situations differ in different parts of the country and in different types of First Nations communities.

Obviously, if you have a community where people live in close neighbourhoods, as they do in the Atlantic provinces, it is easier to put in a typical urban system that requires certain types of monitoring and regulation, et cetera. However, if you live in a remote area on a piece of land that is much bigger, the onus on clean water and looking after your waste situation falls on the individual people. I do not think that it is very different between First Nations peoples and other people who live in the country and on farms.

My question is to Mr. Harper. The regulations that would be devised at the local level would have to take into consideration the different situations. An urban type water system would probably not be the most effective way of dealing with water for individuals. A pump that would pump water from the lake to the house would provide running water in a different sense. It is not a large system but an individual setup. Is that what you are looking at for Northern Manitoba? If so, why would you have the communities wait? Why could it not go faster with small individual systems?

I noticed that the regulations in Manitoba do not provide any standards for systems that are for less than five dwellings. Is that correct?

Mr. Harper: That is right. Again, we are trying to address every community, every First Nation home — we are observing the entirety of the community. We need those systems in place. The rules and regulations that apply to clean, running water in the urban centres move at a totally different pace compared to the remote centres. If we were to speed up the process by having infrastructure in these communities as part of this regulation also, then we would see the light at the end of the tunnel, that something is coming into place.

Senator Raine: Do the remote areas where there is no system for the delivery of water have cisterns or water trucks? How do they actually get their water? Does everyone get water from the lake, all 10,000 people?

Mr. Harper: Half of those 10,000 people are still getting water from the lake. The other half has their water delivered, especially the elderly that are within driving distance of the water truck. There is no infrastructure in the actual homes. If this bill was to provide for clean, running water in every home, how are we to adapt the rule into the homes without such systems in place?

Senator Raine: I would like to hear from Mr. Leonard.

Mr. Leonard: Sorry for being so insistent, but I have 47 chiefs to answer to when I go back to Alberta, so I have to make sure I get certain points across.

One of our big concerns is this "commitment," for lack of a better word, from INAC that they will work with us on the regulations. If you read this bill, it does not say that at all — anywhere — and we are starting to feel a bit like Charlie Brown with Lucy holding the football. We were told, "Come and consult with us and be partners in the development of the legislation." Therefore, we went to the expert panel hearings, as brief as they were, and we were told that we would be consulted about the options identified. What we received was a decision from Canada that preceded one of the options. Then they said, "Do not worry, come to the engagement session and consult with us more." Mr. Karisse started the day off by saying, "Thank you very much for coming, Chiefs. It is outside the scope of this process to hear any concerns you have about treaty and Aboriginal rights."

I had a copy of the PowerPoint presentation in advance, and the purpose of the session was just for Canada to message about the bill. This is what we intended to do. The chiefs asked them to sit down and listen.

Then we invested huge amounts of resources and time on this Impact Analysis to answer all the questions Canada was asking, and we have not received any response at all. We have a right to be pretty darned skeptical when it comes to this commitment that they will work with First Nations on the regulations. They may have a whole bunch of meetings, but we do not believe that they will work with us on the regulations.

I might point out that it would go a long way if a requirement to consult with First Nations in the course of developing regulations were to be actually built into this enabling legislation. When you do major things under Alberta's Water Act, which is an enabling act, it requires extensive public consultation to develop watershed management plans and source water protection plans. The minister and the director have a requirement to go out and talk to Albertans and listen to them. There is nothing like that in this legislation.

I do not want to be only critical. We have done a lot of work, and it is not just about what is wrong; it is about how to get to what is right. We would encourage senators to read pages 8 through 10 of our written submission because we lay out a plan that we think gets First Nations where we want to be and respects Canada's goal of establishing some uniformity of standards across the country.

If possible, we would also like to leave a copy of our Impact Analysis as evidence with you.

The Chair: When your presentation is translated, we will have it circulated. If you want to have the impact analysis form part of the record, I believe we can accept it. We would have to have it translated before it could be circulated, though.

Is it the wish of the committee to have the Alberta group table this document?

Hon. Senators: Agreed.

The Chair: Is there any disagreement? It is agreed, then, that it will form part of the record and will not be made available until translated.

Senator Dallaire: I think that, first, you should be indicating that cottage country Canada has much better safe drinking water than you have.

Second, I do not know why we do not hear from you about the fact that, yes, it is costing a whack of money to build the infrastructure, sustain it and improve it in these isolated areas, but you never compare it to the massive amounts of money we spend down South to guarantee that we have clean water. If we are comparing billions, you are peanuts compared to what we are spending down here. Therefore, that argument does not come to the fore and does not, in my opinion, help your case and establish an argument against the nature of this bill. The backdrop that we received from the civil servants about the bill was that the Auditor General is on their backs for spending nearly $2 billion and not necessarily getting what they think should be good value for money.

With that said, Grand Chief Harper, you have shown us a picture of a gentleman getting water from the lake, which would be cute in cottage country but not when you have to survive that way. Then there is a picture where there is obviously no system for clean sanitation; this guy is dumping human waste. However, why is he doing it in a garbage dump by the house?

In Rwanda, they have outlawed plastic bags. They pick up their garbage, and that is a developing country. I think this is positive on one side but negative on the other side that families are living in unsanitary situations because people are simply not picking up their garbage. That is my statement.

Mr. Harper: I want to quickly ask for the chair to include our written submission as part of our record for this proceeding.

The Chair: Do members agree?

Hon. Senators: Agreed.

The Chair: It will therefore form part of the record. We are on the second round.

Senator Sibbeston: I will state to all something in a non-partisan manner.

A number of years ago when the Conservative government came in and Mr. Prentice was made Minister of Indian Affairs and Northern Development, one of the first things he announced was that they would do something about water for First Nations. I thought, "Wow, what a great minister. He is focusing on the real issues."

The information provided by INAC is that, in 2008, $330 million was to be spent over two years for First Nations water and waste water matters. They talked about an action plan that would conduct a national assessment of First Nations' water and sewage systems, establish long-term investment strategies and consult and create a legislative framework and a regulatory regime.

In 2009, the government provided an additional $193 million to complete 18 First Nation communities' projects. In budget in 2010, the government again provided for $330 million over two years. It has been said that the government has invested and will be investing $2.5 billion between 2006 and 2012.

Canadians would think that that is a lot of money going to First Nations water systems. With all that money, is anything happening in the communities? Do you see any evidence of government spending money to improve water situations on First Nations reserves in the last few years?

Mr. Harper: I will reiterate what I said earlier. Much of the spending that has been done is not prioritized in remote communities. They are not a priority; they are not even on the radar screen. During H1N1, we made a statement that the only solution we received was body bags in our communities. Is that a solution? That is not a solution.

Again, I will state: We need to be part of the decision making. We must be part of any decision that will be made in our region, and we are not. For the next five years, there is absolutely nothing on the radar screen.

The Chair: I am out of time.

Senator Sibbeston: I would just like people to know that is one response. However, I think it is important for Canadians to know where the $2.5 billion went. Is there any evidence of it being spent in the communities, in the urban areas even if it was not spent in the rural parts? I would like to hear whether you see any evidence of government spending money to improve the water situation.

The Chair: Senator Sibbeston, I think we should ask the department that question.

Senator Sibbeston: No. I think the department is the wrong group to ask. It is these people who live in the area who ought to know about this and see any evidence of spending. The federal government will tell us "Of course." However, I want to know from these people who live in the different regions of the country whether there is any evidence of this $2.5 billion.

Michael Anderson, Research Director, Manitoba Keewatinowi Okimakanak Inc.: There was a brief note in Grand Chief Harper's comments about the Ontario-Canada retrofit agreement. The correspondence between ministers Wildman and Siddon was reviewed. We will undertake to have that translated and provided to the committee.

They were addressing a significant backlog in the provision of water and waste water services in 35 communities in Northern Ontario. A lot of the significant dollars that have been spent recently, or since the announcements referred to by this committee, are addressing a significant backlog in the provision of water and waste water services.

In addition, even where services have been provided, the rate of community growth is outstripping the capacity of the facilities to provide continuous services. Therefore, we have a situation where we are trying to catch up, without standing services that are and might have been urgently required for a decade or more. At the same time, the community continues to grow.

We need a significant commitment to invest in adequate resources, perhaps using language such as "reasonably comparable to those facilities serving similar communities in similar locations." The bill is notable in that it provides no commitment on the part of government to provide comparable services or the resources necessary to meet the regulatory standards being contemplated.

As a quick comment on several things that were mentioned, there were numerous references to collaborative development of regulations, particularly in the evidence of the departmental officials on February 2. There is no provision in the bill for the collaborative development of regulations. There is no provision in the bill for the phased-in approach of regulations. Essentially, many of the things that the departmental representatives had said that it was the intent or the hope of government to do not appear as provisions in the proposed legislation. The committee has been presented a vision of the department's approach to the bill in terms of collaboration, phasing and so on, but none of that appears in the proposed legislation.

With respect to Grand Chief Harper's comments on recommendations about consent of the band, there are several provisions in the Indian Act where the minister's discretion requires consent. Requiring upon the advice of and with the consent of a First Nation would require, in effect, that collaboration would take place, whether or not it be done regionally as has been proposed as a practical approach to dealing with a large number of First Nations. Clearly that element of collaborative consent ought to be in any statutory regime affecting regulations for water and waste water in First Nation communities.

I will also quickly add that I suppose one of the elephants in the room is the protection of source water quality. Provincial standards often do not provide for adequate protection for source water quality.

It is not unique in Manitoba or other places, but many of our First Nations were originally sited on locations of excellent water quality, particularly for example, in Northern Manitoba along the waterways now regulated and operated by Manitoba Hydro. At Nisichawayasihk Cree Nation, for example, which means "place where three rivers meet," the water there was clear like any of the lakes in Ontario that you are familiar with. Today the water is the colour of tea with cream in it. It will stay that way as long as the damns are in operation. In many cases, the communities are struggling with high levels of suspended solids, sediments and other contaminants caused by forestry, logging, mining and agriculture.

None of these are addressed in the bill in terms of the federal government seeking to use its authority to reach into its ability to protect water — interesting for fish, as a high order of protective quality — and ensure that First Nations source water quality is also given the same protection off-reserve that is being contemplated and discussed within the statute on-reserve.

Clearly there is much to be done. The protection of water and providing the highest quality of water to our communities is a sacred obligation under customary law. There are substantial regulations attempting to do that, whether or not they are codified.

We had briefly mentioned in our submission that the Indian Act, although it is not a fulsome authority to protect and provide regulations for water quality, already provides power under the bylaw-making sections under section 81 to regulate water systems on-reserve.

The Health Canada officials who appeared before you on February 2 said that a lot of excellent collaboration is being done and that people were doing everything they could to provide and protect water. As Grand Chief Harper commented, it is about the adequacy and comparability of resources on-reserve.

The Chair: Thank you. I thank the whole panel from Alberta, Atlantic Canada and Manitoba for their excellent presentations this morning. Mr. Paul, do you have something to add?

Mr. Paul: I will provide you a copy of the report about the systems in Atlantic Canada that was part of the presentation from Graham Gagnon. We will provide that to the committee, as well.

The Chair: That is fine. We will accept that as information.

Colleagues, we are quite a bit past our allocated time, so we are adjourned until tomorrow evening at 6:45 p.m.

(The committee adjourned.)