Debates of the Senate  
1st Session, 41st Parliament, Volume 148, Issue 90
  Wednesday, June 13, 2012
S-8: Safe Drinking Water for First Nations Act (Third Reading)

.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 associations.

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 regulation development.

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 water.

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 Nation.

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 divisive litigation?

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.

Motion in Amendment

Hon. Lillian Eva Dyck: Honourable senators, I move:

That Bill S-8 be amended in clause 3, on page 3, by replacing lines 9 to 11 with the following:

"Act, 1982.".

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: "Act, 1982."

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 correct?

Senator Dyck: Yes.

The Hon. the Speaker pro tempore: In third reading, you made an amendment that was moved and seconded.

Senator Dyck: Yes, and now I would like to debate the amendment.

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 debate.

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 lands.

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 water.

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 member.

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 specified conditions,

(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 land.

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 critical importance.

He stated:

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 examples.

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.

Thank you.