Hon. Grant Mitchell:

Honourable senators, I would like to mention a few points on Bill S-11, which has been debated in detail. Certainly I concur with the presentation made by my colleague, Senator Banks, but I would like to emphasize several points, because this is a fundamentally important issue on many levels, certainly for First Nations communities in my province of Alberta and First Nations peoples across the country. To the extent that First Nations people are not being adequately treated, it is an issue not just for First Nations people, but for all Canadians.

My initial reaction is that at second reading we are debating this in principle and, of course, this is a difficult principle at one level not to concur with. The fact of the matter is that it is a bill about safe drinking water and so, at face value, one would appreciate it might be supported relatively easily, but it depends on how one parses the principles.

There are principles that affect First Nations' rights to self-governance and fundamental rights, and there are principles of capacity-building in Aboriginal communities so that they can perform the kind of functions that would be called for in this act and be penalized if they were not fulfilled.

There is a serious problem and we have heard it many times. Once again, I wish to emphasize that as of 2009 there are still 49 First Nations water systems classified as high risk and, as recently as August 31 of this year, 117 communities were under drinking water advisories.

To emphasize Senator Carstairs' point, I would also like to point out that it is instructive in this debate that there is very little support among First Nations peoples for this piece of legislation, despite the fact that the government spins it continuously as something that will actually be to their advantage.

The devil is, of course — as is usually the case — in the details. There are two broad problems. First, in several, if not many ways, this legislation offends rights, it can lead to the abrogation of rights for Aboriginal people, and it raises self-governance issues.

The preamble sets out an assumption quite clearly — and in quite a startling fashion — that somehow First Nations do not have the authority necessary to govern water on reserves, and this implicitly demonstrates a lack of respect for First Nations governance systems. The fact of the matter is that in many ways they do in fact have these powers.

Clause 6 of Bill S-11 is a direct affront to Aboriginal fundamental rights and self-government in that it states, among other things, that the regulations of Bill S-11 will prevail over the land claim agreements or self-government agreements. By definition, this will allow the federal government to abrogate or derogate from the terms of modern treaties and to diminish the authority, the powers that First Nations do exercise and have every right to exercise right now over administrative mechanisms that they have for, among other things, dealing with the quality of their water.

This abrogation and self-governance issue is further compounded by the provisions set out in clause 4(1)(b) of the bill, which states that under this act the government may make regulations to —

. . . confer any legislative, administrative, judicial or other power on any person or body . . .

— to carry out what is called for under this bill. There is no provision for that to be done in consort with Aboriginal peoples, with Aboriginal governance parameters, in consultation to utilize the structures that exist already in some cases and actually can function quite well. It is, in fact, with these three provisions — preamble, clause 4(1) and clause 6 — that there is a profound affront to Aboriginal rights and to their self-governance rights as well more specifically.

Honourable senators, in short, in order for this bill to be acceptable in any way, shape or form, there must be provisions that ensure that there is no abrogation of these rights under any circumstances once this bill, or one that would be amended, would be put into law.

The second problem is that while this bill lays out a legislative structure of sorts, it in no way addresses the issue of capacity-building. There are tremendous demands on Aboriginal communities to be met under this bill in order to meet the standards, high as they will be, that will be set under this bill, and in fact they can be punished for not meeting those standards.

Honourable senators, it brings one to recollect the adage that you cannot legislate certain problems away. Legislating standards in this case will not legislate the problem of water quality away because many First Nations communities will not have the resources to meet these standards in any event.

It may, however, be that the government thinks it can legislate away — read spin away — its political problem, because it can say, "Look what we are doing. We have brought in legislation. It is substantive." They can carry off that somehow they have made some kind of commitment to First Nations communities that will really solve a desperately severe problem, when in fact it simply will not.

I will conclude by saying that earlier this year we considered the Aboriginal matrimonial properties bill, which shares much in concept with the nature of this bill. When I say that, I mean that it was implicitly condescending in the way that it structured its relationship to matrimonial property-changes on First Nations. It was condescending in the fact that it applied a legislative structure, a legislative attitude, a legislative philosophy that simply did not meet the traditions of First Nations Aboriginal peoples. The same applies here. The Aboriginal matrimonial property bill was consistent with this bill as well to the extent that it required a great deal and does require a great deal of effort, expense and expertise on the part of First Nations communities, and they simply do not have the capacity, nor was there any provision for them to have the capacity or the resources, in either of these bills to do what needs to be done under these bills.

It seems to me that this may be becoming a very bad and unproductive habit. It is a habit, an attitude, a way of condescending to First Nations people that simply will not work. These pieces of legislation, this one in particular, will not solve the problem the government would say it is designed to solve. In fact, in many ways it just compounds the problem and it certainly raises expectations that simply will not be met.

For that reason, honourable senators, I think this is not a particularly good piece of legislation. It needs a lot of work. Maybe it will get some of that in committee, but if it does not, it is not worth passing.

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