Debates of the Senate  
3rd Session, 40th Parliament,Volume 147, Issue 66.
  Wednesday, November 17, 2010
Orders of the Day: Safe Drinking Water for First Nations Bill

  Second Reading- Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Brazeau, seconded by the Honourable Senator Lang, for the second reading of Bill S-11, An Act respecting the safety of drinking water on first nation lands.

Hon. Lillian Eva Dyck: Honourable senators, I would like to make some comments about Bill S-11, but the adjournment should remain in the name of Senator Mitchell.

Honourable senators, I rise today to speak to Bill S-11, An Act respecting the safety of drinking water on First Nation lands. We have heard much debate on the topic of the dire situation of safe drinking water on reserves across Canada. The statistics are staggering and the situation on reserves has no place in an advanced and modern country such as Canada. All of us in this chamber must surely agree that something needs to be done to rectify this situation, but action for action's sake rarely produces effective change.

Significant portions of Bill S-11, which raise deep and great concern, do not really do much to meet the objective of safe and clean drinking water on reserves. As this chamber continues to study this bill, I would like to point out four areas of significant concern for honourable senators to contemplate.

The first problem with Bill S-11 is that the government did not fulfill its responsibility to consult and accommodate First Nations in the drafting of this legislation. The federal government is obliged to consult and accommodate Aboriginal peoples when their potential or existing rights may be infringed by impending legislative or regulatory schemes. This duty to consult and accommodate was upheld in a 1990 Supreme Court of Canada decision in R. v. Sparrow.

While the Department of Indian Affairs and Northern Development did hold engagement sessions and impact assessments, those were not nearly sufficient to fulfill the government's obligations to consult and accommodate First Nations. INAC contracted the Institute On Governance to conduct the consultation and engagement sessions. From February to March 2009, 13 engagement sessions in each province and territory and an additional ten consultation sessions for First Nation organizations were undertaken across the country on the desirability of federal drinking water and waste water legislation pertaining to federal legislation that would call for the incorporation by reference of provincial or territorial regulations relating to potable water and waste water.

However, it did not involve a consultation process on Bill S-11 as it stands here before us now.

The summary report by the Institute On Governance stated that the Crown did not satisfy its duty to consult and accommodate First Nations. The report noted that: First, the Crown failed to engage in any meaningful consultation; second, the Crown breached its duty to accommodate First Nations by making a unilateral decision to proceed with the engagement sessions and impact assessments solely on incorporation by reference; third, the Crown did not genuinely listen to concerns; fourth, the Crown failed to provide adequate time and resources to enable meaningful consultation; and, fifth, the Crown was unwilling to engage in discussion of any inherent, treaty and Aboriginal rights-related issues to proposed changes.

Honourable senators, it could not be clearer that the Government of Canada has not lived up to its responsibility to engage in meaningful consultation with First Nations in regard to Bill S-11. The government's own summary report that it commissioned, facilitated through the Institute of Governance, clearly documents this issue.

Honourable senators, the second area of concern with Bill S-11 arises from the imposition of provincial laws on reserves through incorporation by reference. Subclause 4(3) in Bill S-11 states that "The regulations may incorporate by reference laws of a province. . . ."

Generally speaking, under subsection 91(24) of the Constitution Act, 1867, the federal government has exclusive jurisdiction to make laws in relation to "Indians, and Lands reserved for the Indians." The Expert Panel on Safe Drinking Water for First Nations noted the great uncertainty that this approach encounters. The report summarizes that this approach is "fraught with such uncertainty that it is neither a viable nor effective option," yet it appears in the bill before us.

The uncertainty rests in the legal basis of laws of incorporation to First Nations.

Hon. Tommy Banks: Your Honour, with all due respect, some honourable senators, who I am sure are discussing important things, are speaking and I cannot hear the honourable senator who has the floor.

Perhaps if there are important matters to be discussed amongst honourable senators, they could discuss them in a lower voice or outside the chamber.

The Hon. the Speaker pro tempore: Senator Banks makes a good point, and I ask honourable senators to observe the rules of decorum.

Senator Dyck: The Supreme Court in subsequent cases has carved out how and when incorporation can be used and applied to First Nations people. In Dick v. R, the distinction between two categories of provincial laws that could apply to First Nations were, one, provincial laws that can be applied to Indians without "touching their Indianness;" and two, provincial laws applied through section 88 of the Indian Act.

In the first case, the expert panel concluded that there is little legal basis for the application of provincial laws to First Nations drinking water because water and waste water management are under the jurisdiction of the band council. Section 81(1) of the Indian Act allows band councils to make bylaws for:

. . . the construction and maintenance of watercourses . . . the construction and regulation of the use of public wells, cisterns, reservoirs and other water supplies;

Through an application under section 88, the panel again states that because section 88 applies only to "Indians," it does not extend to lands reserved for Indians, it would be hard to enforce a regulatory regime on water through incorporation of provincial or territorial laws because water is a natural resource tied to the lands reserved for Indians, not Indians themselves.

While the Supreme Court has not heard on this matter, lower courts have consistently upheld that principle.

With a legal basis for incorporation for drinking water regulations on reserve, which is shaky at best, why has the government included it in their regulatory scheme?

However, the more important and fundamental issue is this: Why has the federal government not recognized the rights of First Nations to initiate and enact their own regulations, policies or First Nations laws with respect to safe drinking water on reserves?

Honourable senators, the third area of concern with Bill S-11 is the systematic chipping away of section 35 treaty and Aboriginal rights. Three clauses in Bill S-11 attempt to limit greatly and even to void these rights. The first clause of concern is paragraph 4(1)(r) that states that regulations may:

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;

Here there exists a possibility that regulations made under this act could actually "abrogate or derogate" from constitutionally protected Aboriginal or treaty rights. Furthermore, the bill itself does not contain a non-derogation clause, even in the weakest of forms. One does not even appear in the preamble to the bill.

The second clause of concern regarding section 35 rights is subclause 6(1), which allows regulations made under Bill S-11 to prevail over any laws or bylaws made by a First Nation in the event of a conflict or inconsistency between them. I reiterate that under the Indian Act, band councils have the power to enact bylaws that regulate water systems on reserve.

Similarly, the third clause of concern deals with a threat to treaty rights. Subclause 6(2) allows Bill S-11 and regulations made under the act to:

. . . prevail over the land claims agreement or self-government agreement to which the aboriginal body is a party, and over any Act of Parliament giving effect to it, in the event of a conflict or inconsistency. . . .

This clause has the ability to make null and void significant portions of previous treaties and agreements that the Government of Canada has with First Nations.

Honourable senators, this clause is of great concern. Bill S-11 can potentially allow these federal regulations to override Aboriginal and treaty rights that are constitutionally protected.

Finally, honourable senators, I turn to the fourth problem with Bill S-11. It does not provide the resources needed for the provision of safe drinking water on reserves. An explicit recommendation made in the expert panel report was that the resource gap must be closed in terms of water and waste water management on reserve compared to the provinces and territories.

Further, the report stated that it is "not credible to go forward with any regulatory regime without adequate capacity to satisfy the regulatory requirements." Bill S-11 does nothing to provide First Nations with the resources and capacity to modernize water systems on reserves. Instead, it outlines powers and the mechanism of regulations.

First Nations and First Nation organizations across Canada have all agreed that this problem is the fundamental flaw in Bill S-11. It is unfair and irresponsible first, to create these regulations and then, provide nothing in terms of resources to meet them. For the record, I have met with vice chiefs Watson and Lerat from the Federation of Saskatchewan Indian Nations and they see serious flaws in Bill S-11 and think it should be withdrawn or stopped.

Another question raised by the Institute of Governance report, and a concern among many First Nations, is to what extent First Nations now become liable for regulatory non-compliance and resulting implications. Bill S-11 is unclear on these issues.

Honourable senators, members of the Standing Senate Committee on Aboriginal Peoples are familiar with the problem of safe drinking water on First Nations reserves. In 2007, we released a report on this very issue. The report concluded with two clear recommendations. The first was that Indian and Northern Affairs Canada conduct a complete review of water systems on reserves and dedicate the necessary funds to provide for the identified resource needs.

As Dr. Harry Swain, the chair of the expert panel, stated in the report of the Standing Senate Committee on Aboriginal Peoples in 2007, Safe Drinking Water for First Nations:

. . . if we want to see the completion of what has been a fairly considerable national effort to get good water on Indian reserves, then we should worry about the basic resources and then about a regulatory regime.

The recommendation from our report in 2007 also laid out that a plan for allocation of money should be completed by June 2008. The second recommendation was that the department:

. . . also undertake a comprehensive consultation process with First Nation communities and organizations regarding legislative options . . . with a view to collaboratively developing such legislation.

It is quite clear that neither of these recommendations is met in Bill S-11. Honourable senators, it is our duty to ensure that the Government of Canada lives up to its obligations to Aboriginal peoples in Canada and to the Constitution. There are significant portions of Bill S-11 that threaten both obligations.

According to a recent news article, the Minister of Indian Affairs and Northern Development stated that he will allow First Nations to help to rewrite Bill S-11. What exactly does that mean? Will the government withdraw Bill S-11 from the Senate in order to live up to Minister Duncan's promise? Honourable senators, I hope that that is the case and that Minister Duncan asks that this bill be withdrawn so that First Nations can sit at the table as equal partners in the drafting of legislation respecting the safety of drinking water on First Nations land.

Honourable senators, I will conclude by reading a quote from the fall 2010 FLOW newsletter, which states the case clearly and succinctly with regard to Bill S-11:

To enact legislation which appears to contemplate and even condone impacts on First Nation's rights without first accommodating the known concerns of First Nations is in direct violation of the government's fiduciary duties and responsibilities, not to mention the statements of the Supreme Court of Canada regarding the protections afforded First Nations rights by virtue of Section 35(1) of the Canadian Constitution. . . . We are legally and morally bound to ensure First Nations have access to safe drinking water without compromising their inherent and constitutional rights.

The Hon. the Speaker pro tempore: The Honourable Senator Dyck's time has expired. Is she asking for more time to accept a question from Senator St. Germain?

Senator Dyck: Yes.

Hon. Gerald J. Comeau (Deputy Leader of the Government): Five more minutes.

Hon. Gerry St. Germain: Honourable senators, my question is to Senator Dyck. I compliment the senator on her excellent observations with regard to this proposed legislation. She makes reference to the statement made by the minister responsible for this file.

I ask all honourable senators to consider the urgency of this matter because it is hoped that this will lead immediately to bringing together everyone responsible for the safe drinking water of all Canadians, in particular Aboriginals in this case. The sooner honourable senators refer this bill to committee for study, the better it will be.

Minister has indicated that he is open and understands that changes to the bill are required. Would the honourable senator agree that the sooner this bill is referred to committee, the better?

Senator Dyck: I thank the honourable senator for his comments and question. I am not certain that is the best course of action to take. I am still relatively naive when it comes to Senate procedure.

My preferred option is that the bill be withdrawn, which I say with all due respect. The minister must have had second thoughts because he is now saying to the press that there are serious problems with the bill. All the indications from the major First Nation organizations, such as the Assembly of First Nations, the Assembly of Manitoba Chiefs, the Chiefs of Ontario, the Federation of Saskatchewan Indian Nations, et cetera, have said that the bill is so seriously flawed that they are unconvinced that it can be amended to make it acceptable.

The preferred option among First Nations is to draft a bill collaboratively, as was done with specific claims.

Senator St. Germain: I hear what the honourable senator is saying, and I am respectful of her views that the bill be withdrawn. However, there is nothing to prevent this action from taking place in committee. This issue is so important for such a basic requirement for Aboriginal peoples that I do not think we should procrastinate. I am not accusing procrastination. I realize that those who question it from the other side are doing so in a manner that is in the best interests of all. However, in the same breath, we cannot stand still. We have to move forward.

I urge the other side to consider that thought process and at least refer the bill to committee. If a rewrite is needed, it could conceivably happen at that level. Does the honourable senator agree?

Senator Dyck: I agree that drinking water is an important question. Part of the difficulty is: How big and serious a question is it? When the Department of Indian And Northern Affairs appeared before the committee in April this year, they told us that in 2006 there were 193 deficient water systems across Canada; that as of April 2010, they had reduced it to 49; and that only three communities were high risk. Obviously, we do not want to say that we will let those three communities suffer. The whole issue is how big the problem actually is. INAC will not be finished its assessment until this month; so I am not sure if they have finished their assessment of the drinking water situation across Canada. Although we want to act, we do not have all the facts so that we can look at it objectively and know how big the problem is.

Certainly, the AFN and the FSIN are saying that drinking water is a problem but wonder where they will find the resources to fix it. Why should we have regulations? Why should the First Nations organizations be liable if there is a problem with the water because they are not fulfilling the regulations because they do not have the money to do so? The money should come first.

(On motion of Senator Dyck, for Senator Mitchell, debate adjourned.)