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.
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
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
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
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
. . . 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
. . . 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.
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
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