Statement made on 25 April 2012 by Senator Lillian Eva Dyck
Hon. Lillian Eva Dyck:
Honourable senators, I rise today to speak to Bill S-8, the Safe Drinking Water for First Nations Bill. As the honourable sponsor of the bill stated in his speech, this bill enables the federal government to develop regulations governing drinking water, water quality and waste water disposal on First Nation reserves.
Honourable senators already know of the dire situation on many reserves with respect to drinking water. The images are heartbreaking, and they urge us all to act to rectify this terrible situation. This is not the first bill this government has tabled in Parliament that tries to address the problem of safe drinking water on reserves. In the last Parliament, the government introduced Bill S-11 under the same short title, the Safe Drinking Water for First Nations Bill.
I would like to remind the chamber of key aspects of the Standing Senate Committee on Aboriginal Peoples' study of the precursor bill, Bill S-11. Bill S-11 was introduced on May 26, 2010, and was referred to the Standing Senate Committee on Aboriginal Peoples for study on December 14, 2010. The committee heard from over 15 witnesses in 9 meetings. What became readily apparent during witness testimony was widespread concern over the bill in three key areas: one, the lack of funding and resources to address the infrastructure and capacity gap; two, several clauses that infringed upon constitutionally protected Aboriginal rights; and three, the lack of consultation. I will address these main areas of concern in detail later in my speech.
Many First Nation witnesses urged the committee to halt or withdraw Bill S-11 until the government had sufficiently consulted with First Nations. Due to the overwhelming opposition to Bill S-11, the legislation did not proceed to committee vote or to third reading but was halted in order to allow for further discussions with Aboriginal Affairs and Northern Development Canada officials and First Nations. Bill S-11 then died on the Order Paper when Parliament was dissolved on March 26, 2011.
Since then, the National Assessment of First Nations Water and Wastewater Systems has also been completed and reported back to Parliament. This assessment is the first full-scale overview of water and waste water systems on First Nation reserves. Clearly the results of this inventory ought to be presented to the committee as soon as possible.
I want to highlight what occurred in the last session of Parliament so that we can truly determine whether the government has significantly improved upon Bill S-11 in a real and meaningful way and not merely just by adding half measures.
The first area of concern is the continued lack of funding and resources in Bill S-8 to address on-reserve water systems. There is no funding attached to Bill S-8. As the national assessment has clearly indicated, the funding requirement to upgrade on-reserve water and waste water systems is $4.7 billion over 10 years, plus a projected operating and maintenance budget of $419 million annually. In Budget 2012, the government renewed the First Nations Water and Wastewater Action Plan, with approximately $330 million over two years.
While I commend the government for renewing this funding, it is nowhere near the amount projected by the national assessment.
Honourable senators, if we want to eliminate those heartbreaking images of First Nations children carrying slop buckets and having to walk miles for water, the Government of Canada has to be realistic in estimating the funding requirements and commit to multi-year funding agreements that match, dollar for dollar, the real needs of First Nations.
Honourable senators, this chamber, the Senate of Canada, knows the importance of solving the problem of safe drinking water on reserves. Our Aboriginal Peoples Committee released a report on this very issue in 2007. Our recommendations were clear: first, complete a full assessment of water and waste water systems on reserves, and second, provide the full funding requirements to address the identified resource needs. Sadly, the government has accomplished only one of the two recommendations.
The second area of concern with the bill is the infringement on constitutionally protected Aboriginal and treaty rights. In Bill S-11, there were several clauses that infringed upon Aboriginal rights. The most abhorrent of the clauses was a derogation clause that contemplated that regulations be allowed to derogate from section 35 rights. This clause has now been replaced with a limited non-derogation clause in clause 3 of Bill S-8. I say "limited" because the clause actually sets qualifiers to the limits of section 35 rights. It 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 of First Nation lands.
As you can see, the Aboriginal rights are not to abrogate or derogate, except to the extent necessary to ensure the safety of drinking water on First Nation lands.
I contrast this approach to non-derogation clauses to the work done by the Standing Senate Committee on Legal and Constitutional Affairs in their report entitled Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights. In that report, the recommendation was to introduce legislation to add a non-derogation provision to the federal Interpretation Act that read:
Every enactment shall be construed as to uphold existing Aboriginal treaty rights recognized and affirmed under section 35 of the Constitution Act, 1982, and not to abrogate or derogate from them.
The government, however, did not follow up on that recommendation. I congratulate my honourable colleague Senator Watt, who introduced his bill to achieve the recommendation of the Standing Senate Committee on Legal and Constitutional Affairs. However, as of now, no such amendment to the Interpretation Act exists, and I encourage honourable senators to consider amending clause 3 to a non-derogation clause that was widely agreed upon in the Legal and Constitutional Affairs report by legal experts and First Nation representatives, as well as at the Bill S-11 committee hearings.
In addition, during witness testimony on Bill S-11, First Nation and other witnesses urged the committee to amend the bill to stipulate that regulations would only be developed with the consent of the affected First Nations. The regulation provisions in Bill S-11 allowed for the act to override First Nation laws and bylaws, allowed the incorporation by reference of provincial laws and allowed the act to override any treaty agreements that may be in conflict with the act.
With these infringements on Aboriginal rights of self-governance, consent should be required. However, these provisions have carried over to Bill S-8, without incorporating a formal way of getting the consent of First Nations. Instead, the government has only added a perambulatory clause that states they have "committed to working with First Nations to develop proposals for regulations."
Honourable senators, while a commitment to working with First Nations is encouraging, a concrete operative clause that allows the First Nation to consent to regulations would better exemplify a truly government-to-government relationship in the development of water and waste water regulations.
The third area of concern I will address is the duty of the Crown to consult and accommodate First Nations.
During the committee's study of Bill S-11, almost every First Nation witness made it clear that the federal government did not adequately consult and accommodate First Nations in the drafting of Bill S-11. While the Department of Aboriginal Affairs and Northern Development did hold engagement sessions and impact assessments, we were told these were not nearly sufficient enough to fulfill the government's obligations to consult and accommodate First Nations.
The summary report of the Institute On Governance, the organization contracted to conduct the engagement sessions, lays out the problem with this approach to consultation. It noted that the Crown failed to engage in any meaningful consultation, breached its duty to consult and accommodate First Nations by making a unilateral decision to proceed with the engagement sessions and impact assessments solely on incorporation by reference, did not genuinely listen to concerns, failed to provide adequate time and resources to enable meaningful consultations, and was unwilling to engage in discussion of any inherent treaty and Aboriginal rights-related issues to proposed changes.
After Bill S-11 was withdrawn from the committee last spring, in about March 2011, members of the committee were told that the department was actively, collaboratively discussing amendments to the bill with First Nation organizations. Committee members may recall that at a committee meeting for the first time ever we passed a motion. We took a vote, and we asked the leader of the National Assembly of First Nations to reappear at the committee, after the minister and the department had already appeared as witnesses. That occurred on March 9, 2011.
National Chief Atleo came back. We thought there would be collaborative reworking of the bill. Shortly thereafter, there was prorogation of Parliament. However, at the same time, the Bruce Carson affair surfaced and there were indications that he was associated with a company called Water Pros, which has some links with Indian and Northern Affairs, and that again has resurfaced within the last month. There are some strange goings-on within the department with respect to water filtration. That is the context within which we received the bill.
The department has stated that since May 2010 it has been meeting with the Assembly of First Nations and regional representatives and that most of the changes in Bill S-8, compared to Bill S-11, were a result of negotiations from October 2010 to October 2011 with First Nation organizations from Alberta, the Atlantic and various AFN groups.
I am encouraged that these discussions continued after the dissolution of the last Parliament. However, we still do need to examine the type of discussions that occurred before Bill S-8 was tabled in the Senate.
Honourable senators, during the committee study of Bill S-8, we need to hear from a wide range of First Nation witnesses to garner their perspective on the government's consultations on Bill S-8. Was it a meaningful consultation, or did it fall into the problems highlighted in the Bill S-11 engagement sessions? Were First Nations equal partners in drafting Bill S-8? How can we improve the consultation and engagement process during the development of regulations so that true and honest consultations and accommodations are met? We need to carefully consider all of these questions.
As this bill moves to committee stage, I urge all honourable senators to remember to look at the issues from the past study of Bill S-11 and examine whether Bill S-8 has lived up to a collaborative approach to dealing with water and waste-water systems on-reserve.
I would like to end my remarks by highlighting the spiritual importance of water in First Nations culture, as AFN National Chief Shawn Atleo eloquently stated at the recent AFN Water Rights Conference:
We collectively and intrinsically know that water is directly linked to all survival.
Water, the first living spirit on this earth, gave life to all Creation.