.Hon. Lillian Eva Dyck: Honourable senators, I
rise today at third reading of Bill S-8, the safe drinking
water for First Nations act. This bill was referred to the
Standing Senate Committee on Aboriginal Peoples on April 25,
and since then our committee has heard from 12 non-federal
government witnesses representing First Nations and legal
As honourable senators know, this is the second version
of the First Nations safe drinking water act this chamber
has seen. Its predecessor, Bill S-11, was overwhelmingly
opposed by First Nations and legal experts. However, this
time, with some amendments, Bill S-8 does have conditional
support from four regional First Nation organizations: the
Council of Yukon First Nations, the Treaty 6 and Treaty 7
Chiefs of Alberta, the Assembly of the First Nations of
Quebec and Labrador, and the Atlantic Policy Congress of
First Nations Chiefs.
The rest of the First Nations witnesses were strongly
against Bill S-8, unless critical changes to the bill were
made. Their concerns were largely carried into the
observations of this report, and I will speak to them later
in my speech.
Before I delve into our committee's study of the bill, I
would first like to acknowledge and thank the members of the
committee and the staff for their hard work during the study
of Bill S-8. As a committee we worked together, through
consensus, to achieve a common goal.
The government calls Bill S-8 enabling legislation. Most
of the regulations that will apply to First Nations and
their lands will be discussed after this bill is passed, in
negotiation with the department. The legislation itself
confers powers to the Governor-in-Council to make certain
regulations in the area of water and waste water systems on
First Nations reserves. The success of this legislation and
the safety of drinking water on reserves will rest on the
process of developing the regulations. It is imperative that
the Government of Canada work collaboratively and closely
with First Nations in the drafting of these regulations.
As critic of the bill, in speaking with my colleagues at
committee, we felt that we may progress forward in agreement
with this bill with the addition of certain commitments from
the Minister of Aboriginal Affairs and Northern Development.
Through our committee, the minister wrote to the chair,
committing that his department will work with First Nations
on the development of regulations that stem from this bill.
He also committed to providing resources and funding for
First Nations to participate actively in the regulation
development and further committed to addressing the
infrastructure and resource gap identified by the national
assessment. It is with this commitment from the minister
that we can conditionally support Bill S-8, with the
attached observations that outline key concerns of witnesses
that should be taken into consideration when developing the
regulations. I will now turn to these key areas of concern.
One of the key concerns over the bill was the failure of
the Crown to live up to its duty to consult and accommodate
First Nations. Many witnesses expressed their frustration
with the Crown's failure to consult and accommodate First
Nations in the development of Bill S-8. In particular,
self-governing First Nations were not consulted at all
during the development of Bill S-11 and Bill S-8. The lack
of consultation was the primary objection for the Union of
British Columbia Indian Chiefs and the Federation of
Saskatchewan Indian Nations. Without better consultation,
these two organizations and their membership will not
support Bill S-8. With this track record of consultation,
these First Nation witnesses were deeply concerned over the
level of future consultation and collaboration during the
As the Indigenous Bar Association brief stated, "in light
of the Crown's legislative history, First Nations cannot
simply rely on `good faith' covenants that their voices will
be heard in the development and operation of the regulations
regarding safe drinking water."
However, as I mentioned earlier, with the four First
Nations organizations that have offered conditional support,
a condition for their support is the continued working
relationship that these organizations have been able to
garner with the department. A model of this collaboration
has been exemplified by the Treaty 6 and Treaty 7 Chiefs of
Alberta, who have had successful collaboration with the
department in seeking changes to Bill S-8 and a commitment
for a more appropriate process for consultations in the
development of regulations and adequate resources to ensure
the participation of First Nations in such a process. Our
committee asked the minister and his department to make
these same commitments to all First Nations. The minister
agreed to make these commitments in a letter to the chair of
the committee, who then wrote to the First Nations and sent
a copy of the minister's letter. I, like Chief Weaselhead of
Alberta, am "cautiously optimistic," but I must say that it
would have been better if the minister had written to the
First Nation witnesses directly rather than for them to be
sent a copy.
The second area of concern is the lack of funding
attached to Bill S-8, or any parallel funding or investment
plan to address the massive infrastructure and resource gap
facing on-reserve water and waste water systems.
All non-federal government witnesses were conclusive in
their concern about the lack of adequate financial resources
for infrastructure and training to implement Bill S-8 and
associated regulations. The four First Nation witnesses who
offered support for Bill S-8 did so on the condition that
the required investments for infrastructure upgrades and
training be made before Bill S-8 and its regulations and
associated liabilities are implemented.
It is clear that Bill S-8 alone will not improve water
quality on-reserve. As Grand Chief Weaselhead of Treaty 6
and 7 said:
Regulations without capacity and financial resources to
support them will only set up First Nations to fail . . .
The Safe Drinking Water for First Nations Act alone cannot
and will not ensure the safety of First Nations drinking
The National Assessment has indicated that the investment
needed to address the requirement to upgrade on-reserve
water and wastewater systems is $4.7 billion over 10 years,
plus a projected operating and maintenance budget of $419
million annually. Every report, from the expert panel
onwards, including our own Senate report, has emphasized
that the infrastructure gap has to be addressed before any
legislative or regulatory framework is imposed on a First
The department officials who appeared at the committee
reassured us that regulations and liability will not be
imposed until the First Nation has the resources and
capacity to abide by those regulations. In addition, in the
letter to the chair, the minister stated that infrastructure
investments will be made by working with First Nations to
identify priority areas. I am encouraged by these words.
The third area of concern centred on clause 3 of the
bill. This clause has been described by the government as a
non-derogation clause. However, several witnesses argued
that this clause allows for derogation of Aboriginal and
treaty rights "to the extent necessary to ensure the safety
of drinking water on First Nations lands."
The Supreme Court's test for abrogation of section 35
rights is well established and should be used to guide the
Governor-in-Council when designing the regulations stemming
from Bill S-8, not when prescribing it as a limitation in a
statute of Parliament. Furthermore, a clear explanation of
how these determinations will be made was never fully
addressed. As Mr. Jim Aldridge stated:
What is left unsaid is how necessity will be determined.
Will it be determined by the Governor-in-Council or will it
have to be determined through time-consuming, costly and
These questions were not adequately answered. The
argument was made that, if the courts already recognize
safety as a limitation on an Aboriginal and treaty right,
then there is no need to prescribe it into law. Many
witnesses asked the committee to amend clause 3 by deleting
the limiting language of "except to the extent necessary to
ensure the safety of drinking water on First Nation lands."
Overall, I appreciated the sponsor's cooperative approach
to dealing with the key issues surrounding our study of Bill
S-8. When certain questions arose from committee members, he
was able to provide further clarification and explanations
from department officials.
For instance, during committee testimony, the unique
situation of the Mohawks of Akwesasne raised serious
concerns over how Bill S-8 could actually work for their
First Nation as they have great jurisdictional complexity
and their own bylaws regulating their water and wastewater
systems. They had asked the committee for an exemption under
Bill S-8. In conversation with department officials, they
were able to make it clear that, under clause 5(4), certain
First Nations, like the Mohawk, could be exempted due to
provincial variations, which could also incorporate their
advanced water system and bylaws regulating it. This
discussion was very helpful in not only addressing concerns
of the Mohawk but also in looking at how regulation
development, under Bill S-8, would practically apply to
certain First Nations.
However, not all concerns were dealt with with such
common understanding and agreement. I am disappointed that
the strong opposition to clause 3 fell on deaf ears. I have,
therefore, decided to move an amendment to the bill.
Hon. Lillian Eva Dyck: Honourable senators, I
That Bill S-8 be amended in clause 3, on page 3, by
replacing lines 9 to 11 with the following:
The Hon. the Speaker pro tempore: It
has been moved by Honourable Senator Dyck, seconded by
Honourable Senator Watt that Bill S-8 be amended in clause
3, on page 3, by replacing lines 9 to 11 with the following:
Senator Dyck: Honourable senators, during the
committee's study of Bill S-8, the Safe Drinking Water for
First Nations Act, we came to a consensus decision —
The Hon. the Speaker pro tempore: Is
this a continuation of your third reading speech?
Senator Dyck: The amendment speech; sorry.
The Hon. the Speaker pro tempore:
You have finished your speech on third reading is that
Senator Dyck: Yes.
The Hon. the Speaker pro tempore: In
third reading, you made an amendment that was moved and
Senator Dyck: Yes, and now I would like to debate
The Hon. the Speaker pro tempore:
Honourable Senator Dyck, under the rules, you stood to speak
on third reading debate. You did speak on third reading,
and, in the course of your third reading debate, you moved
an amendment that was properly put before the chamber.
Having done that, that concludes your third reading
Senator Dyck: Could I use the rest of my time?
Some Hon. Senators: Yes.
The Hon. the Speaker pro tempore:
Honourable senators, it requires leave for her, having made
the amendment and interrupted her third reading speech, to
continue her third reading speech to comment on the
amendment. Is leave granted, honourable senators?
Hon. Senators: Agreed.
Senator Dyck: Thank you, honourable senators.
Honourable senators, during the committee's study of Bill
S-8, the Safe Drinking Water for First Nations Act, we came
to a consensus decision to pass the bill with observations.
They were strong observations. Nonetheless, I rise to speak
to this motion as an Aboriginal senator who feels compelled
to do whatever I can to protect existing Aboriginal and
treaty rights. Today, my remarks are those of an Aboriginal
senator, rather than those of a member of the committee or
the opposition critic of the bill.
Honourable senators, I proposed the amendment to clause 3
of Bill S-8 because, while it is important to protect the
safety of drinking water in First Nation communities, it is
just as important to protect existing Aboriginal and treaty
rights of the community. The limiting phrase added to the
non-derogation clause in this bill undermines
constitutionally protected Aboriginal rights.
Clause 3 of the bill states:
For greater certainty, nothing in this Act or the
regulations is to be construed so as to abrogate or derogate
from any existing Aboriginal or treaty rights of the
Aboriginal peoples of Canada under section 35 of the
Constitution Act, 1982, except to the extent necessary
to ensure the safety of drinking water on First Nation
My amendment will strike the phrase "except to the extent
necessary to ensure the safety of drinking water on First
Nation lands" from this clause.
I would like to note that, in the observations attached
to the committee report on Bill S-8, we reported that:
The committee welcomes the inclusion of a clause in the
bill which addresses the relationship between the
legislation and Aboriginal and treaty rights under section
35 of the Constitution Act, 1982. However, the
committee is concerned that this clause still expressly
allows for the abrogation or derogation of Aboriginal and
treaty rights in some circumstances. Such a clause should
only be invoked rarely and not extend beyond what is legally
justifiable in any given circumstances.
Honourable senators, all of the First Nation witnesses
stated that section 35 on Aboriginal rights should be
safeguarded from infringements. The few who agreed to the
specific derogation did so with the understanding that they
would be consulted in the regulation development and that
they would receive adequate funding to provide safe drinking
While the committee's observations are an attempt to put
limits on the use of exceptions to Aboriginal rights, the
minister does not have to heed our advice. The only
foolproof way to guarantee that Aboriginal rights will be
protected is to strike the phrase allowing any exceptions
and revert to the standard non-derogation clause. In his
second reading speech on Bill S-207, An Act to amend the
Interpretation Act, Senator Patterson argued that the
government is justified in infringing on Aboriginal rights
in Bill S-8. I disagree.
For the record, contrary to the comment made by Senator
Patterson in his speech last week on Bill S-207, I was not a
member of the Standing Senate Committee on Legal and
Constitutional Affairs. I did attend a few of their
meetings, but at the time, I was not sitting as a Liberal
Senator Patterson stated:
Even if there was an Aboriginal right on Indian lands
that contained an important community water source, a lawyer
for the Department of Justice advised our committee that the
clause was necessary to ensure that Aboriginal land rights
would not prevail if those rights were employed to justify
the establishment of a garbage dump or waste site that
jeopardized a source of clean drinking water for the
community on those lands.
With all due respect to the honourable senator, my
colleague, the department's argument does not hold water.
The example used by the department trivializes
constitutionally protected Aboriginal rights. Frankly, it is
ludicrous to suggest that insisting on a specific location
for a garbage dump is a section 35 right. Furthermore, to be
blunt, no one in their right mind, Aboriginal or otherwise,
would argue that they have a constitutional right to harm
their own safety by dumping garbage or waste water so close
to their drinking water source that it makes their drinking
water unsafe to drink. No one would be ignorant enough to
knowingly and wilfully endanger the health of their family,
children or the community as a whole.
It is not legitimate to claim that establishing a garbage
dump or waste site too close to a drinking water source is
an Aboriginal right. If a First Nation tried to do this,
they would be prevented from doing so simply by application
of the regulations developed following passage of this bill.
Clause 4 of the bill states that the Governor-in-Council
may make regulations respecting the protection of sources of
drinking water from contamination and clause 5(1)(p)
requires permits to be obtained as a condition of engaging
in any activity on First Nation lands that could affect the
quality of drinking water.
These provisions ensure that a scenario such as locating
a garbage dump too close to the source of drinking water
would be prohibited by regulations developed after the bill
is enacted. Moreover, the minister has committed to working
with First Nations in the drafting of the regulations, so
surely the safety concerns expressed by the department can
be worked out during their deliberations.
Furthermore, the minister and the department have
significant legislative and administrative authority over
most First Nations. In other words, they have more
decision-making power than most First Nations.
While I have used the specific example that the
department officials used, it is important to note that the
same argument applies to any activity that might contaminate
drinking water on First Nation lands. There is no need to
use the phrase "except to the extent necessary to ensure the
safety of drinking water on First Nations lands" to derogate
from First Nation rights. The whole bill is designed to
develop and enact regulations for the provision of safe
drinking water on First Nation lands. As I just said, these
can be crafted satisfactorily by the department and the
First Nations working together.
Honourable senators, perhaps the more important issue to
address is how this bill might infringe on existing
Aboriginal and treaty rights. There are clauses that could
override the existing Aboriginal and treaty rights of Indian
Act First Nations as well as any self-governing or other
First Nations who choose to opt in. Clauses 5(1)(b)
and (c) allow the Governor-in-Council to delegate
whatever power is necessary in specified conditions to make
a First Nation band comply with the regulations. For the
record, I refer to clause 5, which states:
(1) Regulations made under section 4 may
(b) confer on any person or body any legislative,
administrative, judicial or other power that the Governor in
Council considers necessary to effectively regulate drinking
water systems and waste water systems;
(c) confer on any person or body the power,
exercisable in specified circumstances and subject to
(i) to make orders to cease any work, comply with any
provision of the regulations or remedy the consequences of a
failure to comply with the regulations,
Surely such sweeping powers of the Governor-in-Council
could be used to interfere with Aboriginal rights.
Honourable senators, the key to understanding why Bill
S-8 must have the standard non-derogation clause is to
consider specific examples of existing Aboriginal and treaty
rights and how they might be affected negatively by the
enactment of regulations to provide safe drinking water.
Existing Aboriginal and treaty rights would include
activities such as spiritual ceremonies, hunting, trapping,
fishing, and gathering of plants for nutritional or
medicinal purposes. If the physical infrastructure of a
water treatment plant and waste water plant destroys, alters
or contaminates First Nation lands in any way that
interferes significantly with or prevents the practice of
these traditional practices, this would be an infringement
of Aboriginal rights.
Examples of possible infringements of Aboriginal rights
would be construction on or through traditional ceremonial
or sacred sites, such as medicine wheel sites, vision quest
sites, sun dance sites, fasting areas, sweat lodges and
pictograph sites; construction on or through traditional
burial sites; construction on or through traditional summer
cultural camp sites; construction on or through sites where
medicines and traditional foods grow naturally; construction
or interferences with migration or movement of wild animals,
fish or birds used for food, medicines or other traditional
purposes; interference with or interruption of trap lines
and traditional fishing sites; and dumping sewage or waste
water at or near any of the above-named sites.
Honourable senators, the most likely scenario is that
outsiders, such as government, industry or others, will
contaminate drinking water sources on First Nation lands
rather than the First Nations people contaminating their own
Will existing Aboriginal and treaty rights, such as
preserving sacred ceremonial sites, be protected without a
standard non-derogation clause when the regulations of this
bill are developed? No, not necessarily. They may be
protected during regulation formulation, but the only
foolproof way to guarantee that Aboriginal rights will be
protected is to include the standard non-derogation clause
in Bill S-8 by deleting the terminal phrase of clause 3.
Too often First Nations have had their legitimate rights
trampled on. If the limiting phrase in clause 3 is not
deleted, the department could destroy sacred First Nation
sites rather than be legally required to consult with First
Nations to find alternative means of providing safe drinking
water or disposal of waste water.
I hope that when this bill is studied in the other place,
First Nation witnesses will provide examples, as I have
done, of how Aboriginal or treaty rights might be infringed
upon by this bill. It would be helpful to start talking
about these rights using actual examples rather than talking
about them in the abstract.
The witness from the Nisga'a Lisims First Nation clearly
thought that the standard non-derogation clause was of
First Nations, such the Nisga'a Nation and other groups
with land claims agreements, will, we predict, be given the
invidious choice. You can have money for safe drinking water
or you can have your treaty rights, but you cannot have
both. We say that this is a cynical, thin edge of the wedge
to establish, for the first time in Canadian parliamentary
history, a legislative precedent whereby constitutionally
protected rights are subject to ordinary statutes of
Parliament, and the next time there is a bill with this idea
we suggest that the government will point to this bill as
being the legislative precedent. The next time there will
not be the option to opt in or opt out.
Honourable senators, let me summarize my main points. The
phrase "except to the extent necessary to ensure the safety
of drinking water on First Nations lands" in clause 3 ought
to be deleted, because existing Aboriginal and treaty rights
are fundamental rights which should not be undermined.
First, this is what every First Nation witness wanted.
Second, existing Aboriginal and treaty rights, such as
protecting sacred sites, could be compromised during the
development and implementation of the regulations unless the
bill is amended.
Third, the only way to guarantee that existing Aboriginal
and treaty rights will be protected is to amend the bill.
Fourth, if the bill is amended, the safety of drinking
water and the protection of Aboriginal rights will be
guaranteed because both parties will have to undertake true
consultation to come to a solution.
For those who are worried that acceding to section 35
rights will negatively impact the implementation of the
bill, let me state that I do not believe that section 35
rights will be used to stop the provision of safe drinking
water on reserves, but I believe that in honouring those
rights, the government and the First Nations will be able to
come to a creative solution to accommodate both sides —
provision of safe drinking water and upholding existing
Aboriginal and treaty rights.
The ideal solution would have been that the Standing
Senate Committee on Aboriginal Peoples had time to think
more deeply about how to accommodate existing Aboriginal and
treaty rights. It would have been even better if we had
proposed amendments to the bill to protect existing
Aboriginal and treaty rights, such as the ones I used as
Honourable senators, the perfect solution would be for
First Nations themselves to initiate legislation that allows
their rights to be implemented. Maybe the first step is for
them to develop clauses in the regulatory framework to
protect existing Aboriginal and treaty rights such as those
I have listed above, and to present them during committee
study of the bill in the other place.
Honourable senators, I conclude my remarks with this
observation: Many of us, especially those of us who are
members of the Standing Senate Committee on Aboriginal
Peoples, have heard First Nation witnesses whose first words
to us are to acknowledge the Algonquin people upon whose
unceded lands we are sitting. Do honourable senators know
what that means? Do you? I know some of you understand what
that means. The land on which the Parliament of Canada sits,
the very building in which we are debating a bill that would
set limits on existing Aboriginal and treaty rights, is
situated on land that Canada took from the Algonquin people
without their consent or fair compensation.
In other words, Canada ignored their Aboriginal rights
more than 100 years ago.
How can we, as honourable senators, continue to sanction
such dishonourable practices by putting limits on existing
Aboriginal and treaty rights when we do not have to?
I respectfully ask for support in amending Bill S-8 so
that the existing Aboriginal and treaty rights of the First
Nation peoples are honoured and not infringed upon when the
activities to provide safe drinking water and dispose of
waste water on First Nation lands are undertaken.