Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources

Issue 12 - Evidence

OTTAWA, Thursday, June 14, 2001

The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill S-18, to amend the Food and Drugs Act (clean drinking water), met this day at 9:32 a.m. to give consideration to the bill.

Senator Nicholas W. Taylor (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, we are meeting today to gather information on Bill S-18, a bill introduced in the Senate by Honourable Senator Jerahmiel Grafstein. He is the sponsor of the bill. Senator Grafstein will be with us this morning to present his ideas on the water bill and on how the committee should go about its study.

While the idea for this bill might have been embryonic in your thought processes at the time, Senator Grafstein, on March 22, 2001, we met with Jennifer Moore, the Director General of Ecosystems and Environmental Resources Directorate,Environmental Conservation Service, and Mr. John Cooper, Director, National Water Issues, Ecosystems and Environmental Resources Directorate. We cross-examined them thoroughly on the federal-provincial relationship. I would suggest, because it is on the Web, you might take a look at it their evidence.

Please proceed with your presentation.

Hon. Jerahmiel S. Grafstein: I have read that evidence,Mr. Chairman.

Honourable senators, thank very much for arranging this meeting so late in the term and so early in the morning. I appreciate your interest.

What is Parliament to do when confronted with a clear and present danger to public health due to the deteriorating state of our community drinking water in every region across the country? As I have said before to the Senate, the sorry saga of Walkerton that erupted over a year ago, and is still bubbling in the Ontario legislature, was only one wake-up call.

In the last year, reports that I have gathered estimate that357 out of 645 Ontario drinking systems failed to meet even provincial standards. In Quebec, over 90 drinking systems have boil water advisories on a regular basis. In Newfoundland, 188 - or 25 per cent - of Newfoundland's water systems have received boil water advisories. Some people have lived with boiled water practically all their lives in some communities in Newfoundland.

Some 171 Aboriginal water systems - one out of five - have been found to be polluted by chemicals. Senator Watt pointed out to me that the dire consequences suffered by the Aboriginal community as a result of unsafe drinking waters exist right across the North, not just in Quebec. In Saskatchewan, before the most recent eruption, 28 drinking systems had boil water advisories. Late last year, 18 public schools in Manitoba were advised that their drinking water was unsafe.

Honourable senators, this is the information I gathered before introduction of my bill on March 1 of this year. Since that time, we have encountered the dire problem in Saskatchewan where dozens of men, women and children have been seriously ill and some have died. That was before we discovered that Vancouver is without a filtration system. It has been estimated that17,500 citizens of Vancouver have been ill each and every year, for at least the last decade - because of stomach disorders due essentially to the drinking water. Winnipeg, which has been subject to horrific floods, is also without adequate filtration.

There are answers to all of these, but since I have collected information on this bill, we have found that two major cities that do not have adequate safeguards. They are not alone. We have heard about Victoria; we have heard from Senator Finnerty. I have heard about the problems in Halifax. It is obvious that, right across the country, we have a clear and present danger to our public health.

To compound the problem, Senator Watt, following the introduction of the bill, brought to my attention more recent anecdotal information. He asserted that chemical pollutants have so degraded the drinking water in the North, and amongst the Aboriginal communities, that there are consequences and damag ing problems caused to reproductive organs, immune systems and learning abilities in babies.

Therefore, honourable senators, confronted with this prima facie case, what is Parliament to do? When a fearsome catalogue represents a clear and present danger to public health across Canada, what are we to do? I do not have all the answers, but each idea requires small and targeted beginnings.

My bill, in effect, is to amend the Food and Drugs Act. It is a simple, surgical, cost-effective means for the federal government to exercise its full constitutional powers. Under the Constitution, the regulation of food has a dual aspect, allowing both federal and provincial regulation. For some, this bill will raise in their minds what should be the extent and scope of a federal government in our modern society. When should the federal government act? What role for the federal government was envisaged by the separation of powers between provincial and federal government and the Constitution?

Honourable senators, what is the reach of our federal checks and balances? To what extent was the residual power in the face of deficient provincial governance encapsulated in the federal power of peace, order and good government? When a clear and present danger to public health across all regions of Canada appears, should the federal government vigorously occupy its space in this dual field when provincial regulations of drinking water systems appear not only to be deficient, but severely dangerous to public health?

These are just a few of the reports. There has never been a comprehensive review of drinking water in every part of this country. We do not know the extent of the problem. I do not know how we can proceed with policy or opposition to policy without knowing the facts.

The bill, therefore, is remediation in very simple form. The Food and Drugs Act is amended to expand the definition of food to include community drinking water systems, and the collection and distribution of drinking water to 25 or more inhabitants. No new regulatory regime need be established. All we do is take an already powerful regulatory regime, which exists under the Food and Drugs Act, and give it expanded powers.

Honourable senators, I chose this vehicle as the most cost-effective way to assert a responsibility and federal control over food - which already exists - with the power to establish standards to inspect, investigate and enforce public health.

The federal government already issues safe drinking water standards. These standards are guidelines only. There is no mandatory inspection or testing of provincial drinking water systems, with some exceptions to which I will allude in a moment. There are no federal punitive consequences for failing to maintain clear drinking water in part.

It is my hope that this bill will investigate the defects, deficiencies, the failures of the provinces, the territories and the public health regimes in their regulatory roles and that the role of federal government to renovate this rather appalling state of affairs should be addressed.

Think about this, senators: Thousands and thousands of Canadians might be at risk. Think of the direct economic consequences of the increased costs to a health system already overloaded by burgeoning costs. Think about the consequences of an unhealthy population to our economic competitiveness.

By way of some example, the responsibility for safe drinking water in the United States now rests with the Environmental Protection Agency, their federal agency established primarily under the Safe Drinking Water Act, of 1974, by the U.S. Congress.

Two weeks I was in Finland at a conference sponsored by the Organization for Security and Co-operation in Europe - OSCE. I met their officials and we then travelled from Finland to the Åland Islands, which are 6,500 islands between Finland and Sweden. I talked to the chief administrator responsible for that autonomous region. We talked about water. She told me that Brussels, in effect, regulates the beaches of these 6,500 islands.

Why does Brussels regulate the beaches? Why centralize? There is a super-national agency in Brussels responsible for pollution in beaches because one of the major industries is tourism. They must compete with the beaches of the Aegean Sea and with the Riviera. The central authority in Brussels is now responsible for pollution on the beaches. If they get a prohibition, this deteriorates and directly affects their tourist industry. That is an indication of how water related to economics is not differentiated, but it converges.

The federal government, the Prime Minister, the Minister of Health, and the Minister of the Environment have all reacted to this bill. They have reacted not so much to the bill, but to the question of whether or not the federal government can or should be involved in clean drinking water. They have all suggested that there are constitutional barriers to this. I suggest that that is not so. I believe that it is reasonable to give them time to think, but if they thought the issue through, they would find they have all the powers necessary to proceed with this particular bill.

In fact, we already regulate drinking water as it appears in bottled water. We regulate packaged ice. We regulate chewing gum. We regulate soft drinks. Yet, we do not regulate clear drinking water.

The other curious thing I have discovered is that we drinking water is regulated through the federal Food and Drugs Act not only with respect to bottled water and ice, but also water served on planes, buses and trains, in the national parks, and we are directly accountable for water regulation in the territories and under the Indian Act.

I believe that under the Health Act, the minister has a common law duty, to inform the public when there is a danger to public health. This is a very serious ministerial responsibility. When legislation is in place and the ministries do not warn the public and let the public know that there is a clear and present danger to their health within the ambit of their regulatory responsibilities, there is a serious problem of public and personal accountability. I raise that because I think that we need to take a very active and vigorous look at this question.

It is curious that when the Prime Minister, the Minister of Health and the Minister of the Environment said they do not have the power, they neglected to look at Parliament. In 1996, a bill was introduced in Parliament, as I discovered in the course of my studies in preparation for this committee. I would have alluded to this in the chamber when I introduced bill had I known at that time. However, I am doing all this on my own, without any outside help, I tried to do a meticulous analysis of federal legislation, and there are more than 30 pieces of legislation directly or indirectly related to this problem. That does not solve the problem, but they are there.

The most curious thing of all - and this is where I say the Prime Minister, the Minister of Health and the Minister of the Environment should have looked at their own agenda - because in 1996, Bill C-76, the Drinking Water Materials Safety Act, went to first reading. It was then re-introduced as Bill C-14 in October 1997 and died on the Order Paper.

The constitutional power to introduce that bill is clear. As you know, the government cannot introduce a bill to Parliament without receiving an internal opinion from the Department of Justice that the bill is constitutionally sound.

As honourable senators know, this question is raised repeatedly as we review legislation. The Department of Justice must give a personal opinion on the constitutional soundness of a bill to the government before the government introduces that proposed legislation. In fact, the government has concluded in an earlier piece of legislation that died on the Order Paper that they do have the federal power. It is my belief that the federal power rested on the criminal power, which is clear and unequivocal.

The Chairman: Is it clear then that when a bill appears on the Order Paper, that it has already been cleared by the Supreme Court, or does the Supreme Court clear it some time in the process?

Senator Grafstein: It is my understanding - and we have had this question before the Standing Senate Committee on Legal and Constitutional Affairs many times - that before a govern ment bill is introduced, the government must receive by convention an opinion from the Department of Justice that the bill is constitutionally sound.

As you know, honourable senators, the legal and constitutional affairs committee, we frequently have this debate with the department when some bills come through, which senators conclude is unconstitutional. We take our opinion, and they take theirs.

As a condition precedent to all legislation, it is my understand ing that they must receive an internal opinion that the bill is constitutionally sound.

Honourable senators, I point this out because I am satisfied beyond a doubt that we already regulate water. We have the constitutional power to regulate water under a number of heads. I do not want the Constitution to be added as a firewall against a greater fire; the greater fire is a danger to public health right across the country.

I am open to questions.

Senator Watt: Senator Grafstein, I appreciate your coming forward with this huge problem, which is starting to become uncontrollable in certain areas. You talked about the jurisdiction between the federal and the provincial governments. You also mentioned that the territories have a delegated authority from the federal government because the federal government retains its jurisdiction over the territories and reserves that fall under the Indian Act.

There does not seem to be a jurisdictional problem with regard to the territories since it is under federal jurisdiction and falls under the Indian Act. Although there are some Aboriginal peoples within the provinces, the federal government still cannot duck its responsibilities for them because it has a future responsibility for Aboriginal people under the Constitution.

The Minister of Indian Affairs has responsibility for renewable and non-renewable resources within the territory. We are concerned that that may push the federal government to have regulatory responsibility for water. If the federal government does not assume that fiduciary responsibility, whether in the provinces, territories, or on reserves, would the Department of Indian Affairs and Northern Development be responsible for problems that arise as a consequence of not exercising that responsibility?

Senator Grafstein: Senators, part of the inspiration for this bill came from Senator Watt's persistent concerns about the drinking water situation in Aboriginal communities. He raised with it us a number of times last year. Finally, when the problem struck in Walkerton, it caught my attention because I was born not far from Walkerton and know the area well. I pay tribute to Senator Watt for raising this problem. Added to the Walkerton problem, that inspired me to do some more detailed homework and the result is this bill. I thank Senator Watt for that.

In response to your question, Senator Watt, I do not want to be diverted into questions of fiduciary and legal responsibility with respect to the federal government. These important questions should animate the ministries to be proactive on this file. However, I do not want to get into that because I have not carefully studied that issue. I have not looked at the fiduciary responsibility. The legal responsibility is bubbling up through the courts. When there is a statute and the minister of the crown - federal or provincial - is responsible, there may be a common law claim if the minister, or the ministry, or agencies and people within the ministry, do not do the jobs they were paid to do. I am talking about personal accountability. This is a new and different notion because at one time, the Crown could do no wrong; if you represented the Crown, you had a prophylactic against tortious actions by citizens. That has changed.

I think it should compel the ministers to take a much more proactive look at this. There are more than 30 statutes through which there is ministerial responsibility directly or indirectly related to water. Rather than have a generic or macro discussion, my approach to government has always been that if you have a problem you should focus on the problem and see if you can solve it. The more focussed we are in the Senate, the more likely will we be able to redress this problem.

The Food and Drugs Act exists and has strong and appropriate testing mechanisms. I do not want to be diverted from our task of proceeding to renovate what I consider a very serious and prima facie danger to public health. I will reserve your question. I will do my homework and come back to you to discuss that again. However, to my mind, it is collateral to the primary issue we are discussing.

The Chairman: I am mindful of the old ghost that lurks behind all private Senate bills. Could this in any way be considered a money bill?

Senator Grafstein: No. I am satisfied that it is not a money bill.

The Chairman: Of course, we senators are often satisfied that bills are not money bills and later find that they are. You have not heard anyone say that it is a money bill?

Senator Grafstein: No. I have had very good conversations with the minister responsible for the environment, Minister Anderson. He is concerned about the Constitutional issues. Having said that, he is very interested in the fact base that this committee might disgorge. I think that he and his officials will be watching this carefully because he is interested in the facts, as any minister should be.

The Constitution is one thing; the facts dealing with an egregious problem in public health is another. The minister is certainly concerned about that. He has demonstrated that in his career. He is been a very good minister. Therefore, he is interested in this bill but I think he wants to await the outcome of the deliberations of this committee and the Senate, as well he should.

Senator Kenny: I want to observe that administration after administration raises the bogeyman of money bills with us in order to expand their powers and diminish ours. We have a long history of them coming to us and pretending that money bills are much more than they really are. We must be continually vigilant as they try to expand their turf at the expense of ourselves or the members of the House of Commons.

The Chairman: Than very much. We will watch for that bogeyman.

Senator Banks: Senator Kenny has just referred to another clear and present danger with which we have just had an experience. Obviously, that concern is one to which we must pay attention. The jurisdictional question will be very cogent when, as I trust it will, this bill goes forward.

That raises the question of cost. Who will pay the bill? In the short time that I have been here, I have observed that, although people may be in favour of motherhood and apple pie in certain circumstances, as soon as it comes down to who will pay, everyone runs.

Who do you think would pay for this, senator? If this falls under the purview of the Food and Drugs Act, I presume that the cost for regulatory oversight - testing, et cetera - would fall to the Government of Canada. If we are talking about something that will cost a lot of money, are we bumping up against the money bill argument?

I am sure you have examined this carefully. You have already referred to the Canada Water Act, which says that the Government of Canada can intervene in matters of urgent national concern in respect of matters that deal with interjurisdictional waters. However, a whole lot of drinking water is not interjurisdictional and does not cross borders. Before he became a justice of the Supreme Court, Mr. La Forest wrote in a book about the Canada Water Act that, as a general rule, questions having to do with drinking water fall within the purview of provincial governments.

Will provincial governments perceive this as an intrusion into their jurisdiction? Do you think they will resent it? Have you talked to any provincial governments about this or heard any scuttlebutt? What do you think will happen with respect to the jurisdictional question by itself, and further, with respect to the cost of it?

Senator Grafstein: I hear from the public, not from the ministries. That is okay. That is the way it goes.

Let me tell you what I have read in the newspapers about this bill as it applies particularly to Quebec. The only staunchly negative reaction came from Mr. Duceppe of the Bloc. The reaction was not against the efficacy of the bill, nor did he raise any constitutional concerns. He went further and said - I do not want to quote him out of context - "This is a rampant invasion of provincial jurisdiction."

That is the extreme reaction. I will come to the lesser problems.

If one held a referendum today and asked the people of Quebec whether or not they wanted the federal government to exercise its powers to ensure clean and safe drinking water, I am sure that that would be overwhelmingly accepted.

The provincial government in Quebec has recently announced what it considers to be the best and the highest standards of renovating their drinking water inspections. The government will invest $600 million and there will be a litmus test of 79 chemical pollutants that should not be in the water. There has been a majestic reaction and effort in Quebec since the introduction of this bill.

I am not saying this bill will be free of political problems. However, they are political problems; they are not constitutional problems. We have the clear power. We already do it in Quebec. The federal government regulates bottled water and packaged ice in Quebec. We are taking it the next step. The criminal power in peace, order and good government - aside from everything else - in my view gives us clear-cut jurisdiction. The ministries have already satisfied themselves because of that earlier bill.

You raise the deeper problem. Lay aside the Constitution. What would happen if in fact we had a very strong federally supported inspection mechanism? Lay aside the cost. How would it work?

I am not suggesting that the federal regulatory system displace the existing regulatory systems in each province. Ultimately the primary responsibility for delivering water is at the local level. However, it is not a local problem; it is a national problem. In fact, to have the override of the federal criminal power exercised through the Food and Drugs Act is, in my view, very salutary to make people accountable and responsible. It will work better and more efficiently with this override.

I have looked at the cost carefully. When governments react and say that it will cost money, they fail to look at the overall costs. The largest, burgeoning part of our budget is health costs; they are growing by leaps and bounds. As they grow, the health system does not seem to be getting very much better.

We have to take a careful look at the input that increases those costs. There are hundreds of specific examples, such as Moncton and Timmins. In one small Ontario town, Walkerton, the cost of not properly fulfilling the responsibility for providing safe drinking water has resulted in costs to taxpayers of over$50 million. That is for that small community alone. Where did the $50 million go? It went to the cost of the inquiry, the public service, the renovation, and then $22 million in damages to the people that have been injured or have died.

If you look at the cost, anecdotally, in Vancouver, where17,500 citizens every year suffer from a stomach ailment. We do not even know the long-term impact that such an ailment will have on unborn children or on children's learning. That cost is all going to be borne by the taxpayer through the health system.

We are talking about unbelievable numbers here. That is why public health is so important. We drive down the costs of public health when we cut off issues that are a clear danger to our public health. Again, if you started accumulating costs, the costs to our health system in the long run will be stupendous if we do not renovate the clear and present danger to our water system.

My mother always said that an ounce of prevention is worth a pound of cure. My mother is 100 years old and she lives by that maxim. It works.

Senator Banks: There is no question that preventive measures are the best, the most efficient and the cheapest way to ensure good health. Your bill would not change the name of the person at the local level who is going to look after the water. You would not displace the system but rather, you would put into place a standard that person would be obliged to meet.

Senator Grafstein: It would be an enforceable standard.

Senator Banks: It would be enforceable on pain of criminal prosecution?

Senator Grafstein: It would be a quasi-criminal prosecution or perhaps a tortious responsibility, a common law responsibility.

Senator Banks: My problem with respect to not displacing the present system of oversight is that if, God forbid, Walkerton or Vancouver happened again, the only difference would be that someone might then be sued, fined or put in jail. It would not have changed what happened in Walkerton or Vancouver.

Senator Grafstein: Yes, it would. Again, let us look at the European situation as it applies to beaches. I asked the administrator of the Åland Islands how this works. She said, "First, we have improved our local testing techniques." They come in and do spot checks on a regular basis.

Senator Banks: Who does the spot checks, the international authority?

Senator Grafstein: No, the European Union authorities do the checks. They are required to provide tests locally. These tests go to the central authority. I think it would be very useful for this committee to explore that. This is all anecdotal but it struck me as interesting that Spain, England or Greece would allow the EU to decide whether or not their beaches were polluted for swimming.

Again, this is anecdotal - I did not have much time to explore it - but there is regular testing. They establish the tests. The tests are done locally and sent to a central authority for testing. Further, there are spot checks. The inspectors come at any time. This is throughout the entire continent of Europe, which is much larger than Canada. In effect, the local authority was not displaced. The local authority is sharper. The testing is more uniform.

We have different uniform tests in the Province of Ontario. There is not a uniform methodology. There is no uniformity. The bar is not consistent. We have federal guidelines in place. I think you have heard from the officials here in respect of those guidelines. However, the guidelines are not binding. They have no teeth. They have no accountability or responsibility. I do not think those guidelines are adequate, frankly. Everyone is required to do his or her job better. I do not think it will cost anything in the long run. If it does, if it happens to cost one particular province or region more, it may be based on user fees for the testing.

People want clean drinking water. That is what they want. They want to be able to rely on it. I think they are prepared to pay a bit more in their taxes to get it. The taxpayers' problem is that they are paying a lot and they cannot be satisfied that their public health is being safeguarded. That is what is troubling the taxpayers in Walkerton and Saskatchewan.

Senator Banks: Although you would not displace the local persons and procedures, there might be another level to which water testing would be subject in addition to what now exists.

Senator Grafstein: Exactly.

Senator Spivak: Senator Grafstein, I congratulate you on this initiative because every one was throwing their hands up and claiming that it was not their responsibility. You have chosen to act. I applaud that.

This initiative is just the tip of the iceberg in terms of the lack of political will in addressing health and environmental issues for some strange reason. I do not know why. I will give an example. The Krever Commission inquiry had recommendations that no one is looking at any longer. Some of them were very serious. The environmental assessment process is more honoured in the breech than the observance on huge projects, not small ones. Much of the problem is political will.

I have two questions to ask. You mentioned the drinking water guidelines. As you know, there has been a strong lobby to legislate standards as they have in the United States. Could you expand further on that?

Could you elaborate the nature of the enforcement under the Food and Drugs Act? I like the idea of the criminal charge power. That is a very good stick. What is the enforcement like? How does that work? I am not familiar with what the enforcement procedure is under the Food and Drugs Act. Could you explain that?

Senator Grafstein: There are legislative standards. That is precisely what this bill does. It goes from guidelines to precise standards. It would require the federal government to establish a precise lexicon of tests and standards for clear drinking water, which we have in part and in many places. It means cataloguing them all in one place.

We do it for drinking water on planes, trains, buses, and in the parks and so on. It is in many pieces of legislation.

The idea is to encapsulate it all into the Food and Drugs Act and make it a consistent and clear standard. It will avoid confusion. Accountability would then be clear.

As to enforcement, the act has provisions with respect to enforcement. It would be best if you were to ask the Food and Drugs authorities how they enforce failures under the Food and Drugs Act. I am not asking for a higher or lower standard than that.

I have not had an opportunity to study that aspect. I do not want to pre-empt officials on that. I will be watching the testimony very carefully. If I think the officials are incorrect, I hope I will be given an opportunity to come back and correct those officials.

Senator Spivak: Enforcement is strictly federal responsibility; it is not delegated to the provinces like others responsibilities are?

Senator Grafstein: No.

Senator Spivak: The Coast Guard, for example, is responsible for the Department of Fisheries and Oceans for all the waterways in Canada, and they delegate it.

Senator Grafstein: I would rather hear from the officials on that. Enforcement is a more complicated issue. Is there a law that would be breached? The question is how it is enforced and by whom. It is a more delicate and complex matter.

I will certainly return and address that, if necessary.

Senator Spivak: We think that Singapore is very harsh because they prosecute people for spitting or chewing gum. On the other hand, in our country, we do not prosecute people for committing major crimes.

The Chairman: You are not suggesting spanking for water impurities?

Senator Spivak: No, I am suggesting that violations in matters of health and environment are so serious and pervasive that we need to look at criminal powers. Thank you for introducing that concept.

Senator Grafstein: We keep coming across things that are frightening. Legionnaire's disease caused dozens of deaths in Winnipeg, Manitoba. No one ever determined the cause. In the course of my studies here, I learned that legionella is a water-borne microbe. There may be a connection between that and Legionnaire's disease. I raise that as an issue because Senator Spivak comes from Manitoba. That is something she might want to explore herself.

Senator Sibbeston: Senator Grafstein has taken quite a bold step. That idea either will be rejected at the other place or it eventually will force the federal government to recognize its constitutional responsibility. It will force the issue.

In your discussions with government officials, do you have any sense that this bill would have the effect of forcing the government to make decisions as to whether they do have jurisdiction or not. You are doing the work of the federal government. It is the federal government that ought to be concerned and ought to be introducing legislation if they feel that it is within their jurisdiction and that the matter is sufficiently large that they ought to address it.

Are you hopeful? Have you seen any signs that the federal government may relent and recognize its responsibility?

Senator Grafstein: Senator, you have heard me on this before so I will say it briefly. Parliament is supreme, not the cabinet. The cabinet acts in Parliament. Parliament, the Senate and the House of Commons, are supreme when if comes to law making. When there is a problem, and the government does not address the problem, it is up to Parliament, the Senate or the Commons, to provide legislative answers.

It is not a question responsibility; Parliament has responsibility.

Having said that, I have heard only three things from the federal government. First, in the newspapers, I read the Prime Minister's reaction to the fact that there is a constitutional problem. That disappeared after one day.

Second, I have had conversations with the minister of the Environment who is interested in this bill, but is awaiting the outcome of the hearings, as he should. Third, I have heard indirectly from the minister of Health who believes that we should do something about water.

Senator Adams: Senator Grafstein, congratulations onBill S-18. I hope you will be successful. I know it is difficult.

I never expected water to be a problem, especially in the Arctic. However, every community now has a water treatment plant. Sometimes it is difficult to determine how they operate. In some communities in the North, people do not drink the water. The system smells. There is too much chlorine, and the people do not like the smell of chlorine. It ruins their tea.

If your bill passes, would it have an effect on people needing to drink bottled water or melted ice? Should we regulate from what sources people drink water?

Now people travel with a five-gallon jug up the river to get their water. In the winter, some of the younger people bring ice to their houses and use that for drinking water.

Senator Grafstein: The Arctic causes me the greatest problem. The safeguards for regulating drinking water are inadequate. As well, we have found that the seafood, drinking water and ice are not safe for the Aboriginals who live off the land. Senator Watts has brought to my attention some recent studies on the levels of chemical pollutants ingested by women. The studies compared levels of pollutants in the breast milk of women in Canada's North with that of women in Iceland, which is also a northern country, with a similar geography. Here, the levels of chemical pollutants in mother's milk are 10 to 15 times higher than in Iceland. This is a horrible problem.

It is not just the drinking water, but also the traditional food sources that are causing a problem. When you go up North and see this wonderful, pristine area, you find that in the last eight or 10 years, it has gone from a pristine area to an area full of chemical pollutants. Mother's milk is 10 times more chemically polluted than the milk of Icelandic women. This is a serious cause for concern.

I do not have a micro answer to that, but civilization does advance in small steps. This is a small and important step to get the ball rolling. I do not have an answer for you, Senator Adams, but it is a disaster in the North - a public health disaster.

Senator Christensen: Than you, Senator Grafstein. You are highlighting an extreme problem. It is likely the major health problem that we have worldwide. Water is such an integral part of everything we do, eat and drink.

This is a small step, but setting a national standard is essential. I wonder if we are diluting the problem by putting another level on bureaucracy on it? It seems to be another step where people could pass the buck up to the next bureaucratic level.

There are municipal, provincial and territorial responsibilities, and now we are asking for a federal inspection. That would create three levels of inspection, which adds another step that could delay action when problems occur. This is a concern that I have. I would like you to address that, if you could.

You said that it would present minimal costs for setting standards. However, to solve the magnitude of these problems, we are looking at horrendous costs: Infrastructure in municipalities, such as Vancouver and Winnipeg, as you mentioned, may need upgrading. Those costs alone would be very high, and by setting national standards, those costs would rest at the federal level. I have no objection to that, but it is a fact, and I ask for your comments.

Senator Grafstein: Will there be more or less accountability with an additional federal overview? This is exactly the way in which the federal government was constructed underConfederation. When the provinces were not able to do their jobs, we had two powers: one that has fallen into disuse, and one that is still rampant and glorious. The one in disuse is that we could disallow provincial legislation and, in effect, interfere. However, we have always had the power under peace, order and good government to do the override. That is why we have a Confederation.

As to additional delays with an additional layer, I think, it would be the opposite. Think about this: In the Province of Ontario, we read in the newspapers yesterday that ministers of the Crown knew about this problem, apparently. Three ministers knew about it and each one passed it on. Nothing was done. There was no accountability in the system - none whatsoever. If what we read is true.

The federal override - the threat of federal authority and the actuality of federal authority - forces people to do what President Truman said is the essence of government. Someone once asked Mr. Truman what he does as President of the United States. He replied that he just gets people to do the jobs they are hired to do in the first place. This will only force accountability, quickly, and without confusion.

The kickback on that - and this is where the federal government gets all blurry-eyed - is the cost; it will drive the government through the wall. In Quebec, they have decided they will take the existing infrastructure money - and this is all based on the press reports - and put $300 million into therevitalization of their water systems. In addition, they will take $300 million from the infrastructure dollars that are already available from the federal government, and re-deploy them for this purpose.

In this case, I am not talking about new dollars in the system; rather, I am talking about getting the municipalities, the provinces and the federal government to re-deploy existing dollars to the highest priority. It forces prioritization. I do not see big new dollars.

For instance, I asked David Suzuki about Vancouver. He said that they are all of a sudden starting to renovate their system. They used to have a pristine system in Vancouver, and now they have started a partial renovation of filtration.

If this bill and the threat of the federal criminal power, forces local, municipal and provincial officials to do what they are supposed to do - which is to make public health the highest priority - it will be terrific. I believe that is what will happen. It has happened in the past, and it will happen again.

For the federal government to sit back and say "By the way, it is a Constitutional problem, not our problem," is not fair and it is false. Clearly, we have the responsibility for public health in Canada.

Senator Finnerty: This is another northern problem, Senator Grafstein, and congratulations on this bill. I hope that we can go forward with it.

For the record, when I talked to you earlier about Timmins, I was not talking about municipal water, but rather about the cottage area water and well water.

American mining companies causes some of the problems in Northern Ontario. They come up, develop their mines, and they leave the residue from the tailings to pollute the lakes and rivers. Again, it is jurisdictional. Once those American companies leave the country, we do not seem to be able to force them to clean up the areas. It is another burden for the federal government. Do you have any thoughts on that?

Senator Grafstein: I have a preliminary comment. I will talk about the role of caucuses in this respect. The public is not aware about what happens in national caucuses. This bubbled up in my mind when I heard about it in Ontario. Then, at the Senate Caucus and the National Liberal Caucus, I heard Senators Christensen, Watt and Adams bring the problems of water to our attention. After that, I heard at our national caucus in Quebec, and in other places, that there was a huge problem and what would we do about it? You were all there, and I am not telling tales out of school.

Essentially, there was an outcry from every region in the country within our caucuses about this problem. That is what motivated me to move forward on this. I have heard from you, Senator Christensen, about this before. This is not a new conversation. You raised this with me some six or eight months ago. I did not want to take your comments out of context.

Having said that, it is a macro problem. If you do not solve the problems at the narrowest gauge, you will not solve the biggest problems. I am hopeful that this bill will draw public attention and bring public energy to this particular problem.

If a national referendum posed the question "Do you want the federal government to establish strong and enforceable drinking water standards?" we would get a 90 per cent return. A woman councillor from Saskatchewan called me and said, "Thank God for your bill." I asked why she said that. She said, "Because we have not got an answer. We have not got an answer." I said, "Well, the first thing is we have to know what is going on." We do not know. Once we know and have some preliminary information, let us address it.

Thank you Senator Finnerty. You are another senator who brought to my attention this compelling problem. I do not have a short answer for you, but one of the shortest answers is let us get on with this particular bill. It will renovate this situation.

Senator Kenny: Welcome, Senator Grafstein. It is always a pleasure to see a private member's bill coming forward to a committee.

Senator Grafstein: Mr. Chairman, you must know only one Senate private member's has passed third reading in the other place, and that is Senator Kenny's bill. That is a false compliment to me.

Senator Banks: No, there is another one, your poetry bill.

Senator Grafstein: We have not had third reading. It is second reading in the house of House of Commons. We are having some problems there.

The Chairman: They come through this committee, though.

Senator Grafstein: I noticed that. Luck is with me. Irish luck is with me.

Senator Kenny: It is a good thing that individuals do this. I am glad that you have.

I wanted to ensure that you had every opportunity to talk about the constitutional question. I note the federal government has been involved in 68, 74, 78, 86, 89, 90 and 91, all with different initiatives. Do you feel you have had an adequate chance before this committee to put your case on the constitutional question?

Senator Grafstein: Yes. I believe in the short term that the federal government has the power under a number of heads. It exists. It already does it under the Food and Drugs Act, so it satisfied itself. We have dual powers with respect to Food and Drugs inspection. We have power under the Criminal Code. We have the overriding power under peace, order and good Government.

There is a dual aspect to this. It presents some difficulties, but, clearly, we can choose, from a potpourri of powers, to satisfy ourselves there is public will to go forward. If there was parliamentary will to go forward, to satisfy that, we would be within our constitutional powers.

Senator Kenny: Without question, we have a crisis, and you have given us the figures: 357 out of 645 communities in Ontario, 90 in Quebec, 188 in Newfoundland, et cetera. There is no question this is a national problem, and it is a crisis.

Your proposal is prophylactic. Why do you think governments, in this case, would sooner spend big bucks to fix a problem after the fact, than spend relatively small amounts of money before the case?

Senator Grafstein: I do not know. Sometimes the public agenda is based on what is hot at the moment - what is sexy and what is vote getting. The good news about the Senate is we can look at these issues in a more coherent way than the House of Commons can because we are not compelled to respond to electors from time to time. We have a deeper and broader responsibility with respect to the regions.

I do not know the answer to that question, but anecdotes sear in my mind and upset me, and I am sure they would upset you. The most recent was a story that percolated up after this bill was introduced. All of a sudden, Maclean's magazine called me and said it would be doing a big piece on water. I asked what it had been doing for the last year.

Maclean's ultimately did an important national story that generated a great deal of new information about the problem right across the country. The national magazine had not done this. Perhaps it was not sexy enough.

One searing anecdote troubles me. In Newfoundland, as I say, numerous communities live on boiled water. When I saw this on television, I thought, imagine, spending your life in a small community having to live on boiled water. After all the things we have done 50 years since Confederation with Newfoundland, after the hundreds of millions of dollars that we have transferred to that province, and communities are still without any type of filtration whatsoever. It is a shocking story. Imagine being a mother trying to raise six or seven kids, having to do everything with boiled water. It is shocking.

Why is that shocking story not a national story? Perhaps it is too local and it does not hit the national media. The only thing that I did was take all these local stories that I heard from Senator Watt, Senator Finnerty, Senator Christensen, Senator Adams and others, follow the press reports in the caucus, and put these stories together. I then spoke to some experts and discovered this problem was not merely a local one.

The problem is that it is so intensely local it never catches the national media. The national media has its real problems. It does not deal with inherent problems. It only deals with problems that are colourful or tragic. This is now the beginning of a tragic story, so perhaps they will cover it and we will have the political will to solve the problem.

Senator Kenny: This committee went through extensive hearings on the Environmental Protection Act. We were im pressed with how thorough and comprehensive it was; how substantial the penalties were and how the Criminal Code could be invoked. It all sounded terrific until an official arrived at the table and we asked him how many inspectors they have for Canada. The answer was 28. We worked it out to 2.8 per province, and the likelihood of their ever enforcing the act was small.

The Chairman: You forgot to mention if they went on vacation, that .8 goes. You only have two per province.

Senator Kenny: Yes, and the territories are left out.

You said you were not an expert in this, but I would welcome you to come back and join us in questioning the officials, because I have a feeling we will discover, at the end of the day, the same thing is true with the Food and Drugs Act.

Senator Grafstein: There is good news and bad news. The bad news is as you suggested: We are undermanned in inspection. It is the same with the government of Ontario. All of a sudden, we are giving tax cuts, downloading and downsizing and public health builds up. It forces the governors to govern properly. Perhaps there needs to be a fresh look at that. That is the bad news. I would hope that this bill will reorder priorities.

The good news is we are also committing $4 billion to connectivity. That should increase the efficiencies of dealing with information exchanges. The question is how do you get on-line, all the time, 24 times 7, which is the water problem. The water problem is 24 times 7, on-line, all the time. You have to know when it is happening, when it happens and you have to do it quickly, and I welcome that.

Connectivity ultimately means there will be much more efficient means of obtaining information, exchanging information, and interacting with information. Huge efficiencies will be built into the system with connectivity with respect to how one governs a federal government. Frankly, it will be interesting for this committee to see how it is done in the United States. It would be very interesting to see how it is done in Europe. There are efficient means of doing this in the public interest.

Senator Kenny: He wants us to travel.

Senator Grafstein: Those officials can be brought here, or we can have videoconferences as we have done on a number of Senate committees. They work and are easy to establish. It would be very interesting for the Canadian public to know how other jurisdictions, which have far-flung responsibilities as we do in the federal government, handle similar problems. There are models out there that I think we should address.

The Chairman: Before we let you go, Senator Kenny mentioned the CEPA - the Canadian Environmental Protection Act - which went through a big fight a year ago. We have the right to call back the minister for examination, although it may well be a different minister by the time we get to it in the fall. The CEPA regulations state that there cannot be certain chemicals in the water and that there are only 2.8 inspectors. Would it not be better to stiffen that act so that it examines all drinking water rather than to put this under the Food and Drugs Act? What is your reason for putting it under the Food and Drugs Act rather than the Environmental Protection Act?

Senator Grafstein: Because I think that water is a food. We ingest it every day and I think it is a food. The problem with the clean water or the clear air and environmental acts is that we deal with these macro problems but not with the real issue: that we are ingesting water every day.

Chairman, I predict that if you do your work thoroughly, as I know you and this great committee will, you will be inundated by people taking you through the labyrinth of federal legislation and using everything in their bureaucratic power to deter you from your narrow objective of satisfying yourself that we can have a clean drinking water system in this country. In my view, sometimes legislation gets in the way of action.

The Chairman: Thank you very much. I assure you the committee has a big ball of yarn so that when we go in looking for the Minotaur, we can uncoil it so we can get out again. Thank you for appearing before us. You were certainly a most informed witness and your evidence meshes very well with our initial project investigating water.

Senator Grafstein: I thank the committee and offer this: I am not a member of this committee, I am on a number of other committees. I am certainly available to you or your steering committee to assist you in connection with your investigations and be available if you want. I will make this as a watching brief and use all my powers and sources and make them available to this committee so you can do the thorough job that I know you will do.

The Chairman: You have a legal right to appear. Socially, we would love to have you at the different meetings we will have on this issue.

The committee adjourned.