Hon. Tommy Banks:

Honourable senators, I want to thank Senator Brazeau for sponsoring this bill and particularly for the recitation in his excellent speech of the urgent necessity of taking action on clean drinking water.

I hope that Senator Brazeau and all honourable senators will take note of the fact that committees of the Senate of Canada have been scathingly critical of this government for the state of affairs as regards water on First Nations reserves. We have been scathingly critical of this government. We were scathingly critical of Mr. Martin's government. We were scathingly critical of Mr. Chrétien's government, and we likely will be scathingly critical of the next government.

That criticism, and it was scathing criticism, was made by committees of the Liberal-dominated Senate of a Liberal government in a House of Commons in which an overwhelming majority of seats were held for three consecutive Parliaments by Liberals. Why did we do that? We did that because we are the Senate of Canada, and we, in this place, are not a function of government.

Now, senators, I will be scathingly critical of this bill.

It is difficult to be critical of proposed legislation that says it will bring clean drinking water to First Nations. The purport of the bill is unarguably good. There are two good things about this bill. The first is the title: "Safe Drinking Water for First Nations Act." How can anyone argue with that title? It is a terrific title.

The second good thing in this bill is the concept of universal, nation-wide regulations — not mere guidelines, senators, but regulations with teeth, with the possibility of real penalties for their contravention. That concept is good, but I cannot forebear to note, and to call to the attention of honourable senators, that it is a concept embodied in, and central to, legislation that has been passed twice by the Senate. It was legislation devised by Senator Grafstein, passed here and sent to the House of Commons. It was legislation that, had it been acted on properly in that other place, under both Liberal and Conservative governments, it would have obviated the need for further legislation to protect the interests of First Nations, and everyone else to boot, when it comes to the provision of safe drinking water.

Now here is the legislation again, the concept of enforceable regulations with teeth, and this time in a government bill, wrongly reported in the national media to have been introduced in the Senate by ministers of the Crown whose seats are in the other place.

Those two things — the title and the concept of enforceable regulations — are good. It is also a good thing that the bill recognizes that, as we sometimes know, we have to begin at the beginning; that we sometimes have to look first not at the delivery system but at the source of drinking water. Again, that issue was addressed in great detail in legislation proposed here by Senator Grafstein, legislation that has three times died on the Order Paper.

In the main, senators, this bill is severely deficient. It proposes the possibility of all sorts of regulations, all sorts of punishment and significant penalties against First Nations if they fail to measure up to some as yet undefined standards, which are characterized as national standards, but which will not be national standards because they will vary from province to province to territory.

The idea of engaging the provinces — again, as previously proposed by Senator Grafstein — and incorporating provincial laws and regulations by reference into this bill is a good one. It might also be a good idea, though, to engage the First Nations directly in this process, not by consultation — I think we all understand the ephemeral nature of consultation — but by direct, hands-on participation, as proposed by everyone who has looked at how to solve this problem.

In his speech at second reading, Senator Brazeau referred to two significant precursors to this bill: first, the Report by the Expert Panel on Safe Drinking Water for First Nations, which panel was, I believe, created by this government; and second, the report by the Commissioner of the Environment and Sustainable Development in the Office of the Auditor General.

Senator Brazeau was wise to cite these two reports. He was correct in pointing out that both reports argued and proposed — as Senator Grafstein had argued and proposed, and in legislation that we have passed before and as the Standing Senate Committee on Energy, the Environment and Natural Resources and the Senate of Canada have proposed — that the issue can be addressed only by new legislation, by federal legislation that contemplates meaningful, enforceable regulatory powers. This bill proposes exactly that.

However, Senator Brazeau, the ministers, the government and the drafters of this bill should have read the whole of those reports, all of those reports, because they argued and proposed much more than merely making enforceable regulations. They all went on to say that new institutions had to be put in place, institutions in which the First Nations had direct, on-the-ground, meaningful, participating and proprietary interests.

Permit me to quote from the report of the expert panel. It proposed new legislation. The report called the legislation a bridge to self-government that would create a First Nations water commission comprising a majority of First Nations representatives to be given important roles. I quote from its report: "It would be important for the Commission to have the power to ensure that INAC" — Indian and Northern Affairs Canada — "provide adequate funding to meet the requirements of an Act."

The report said that the government should "base new federal laws on First Nations' customary laws. This task would start with, and be driven by First Nations across the country."

The drafters of this bill forgot that part of the government's own expert panel's report and advice.

Permit me to further refer to Senator Brazeau's speech at second reading, in which he cited the report of the Commissioner of the Environment and Sustainable Development, and which speech correctly described the commissioner's report to have included five recommendations. First, create a federal regulatory regime. This bill does that. Second, clearly design codes and standards. This bill partly does that. Third, ensure monitoring and follow-up. This bill partly does that. Fourth, create institutions for capacity building. Oops, this bill does not do that. Fifth, provide progress reports to Parliament. Well, they forgot that one, too.

Honourable senators, three out of five is not good enough. Leaving the governed out of the design of governance is not good enough anymore. Actually, it has not been good enough since 1215.

In case this bill is sent to committee for further study, allow me to place on the record, having to this point paid attention to important considerations that are not in the bill, some things that are in the bill, some of which should give us pause and others of which should set off very loud alarms.

Clause 4 of the bill refers to included powers — powers of the Crown under the bill — and it states in paragraph 4(1)(b) that the regulations may "confer any legislative, administrative, judicial or other power on any person. . . ."

We used to have laws conferring enforcement powers on public officers, police officers, peace officers, wardens, fisheries officers, and constables of one kind or another, all of whom had demonstrable qualifications in the application of the powers that they were given. Then last year, in Bill C-6, it became inspectors, without reference to any qualifications on the part of those inspectors, whatever they are, of the application of constabulary powers, and now we have "any person," not merely for constabulary powers, but now for judicial powers and legislative powers.

What does that mean, to confer legislative power on a person? I hope that someone who knows the law will look at that. I find it a little frightening.

These persons on whom these powers are conferred, any person without any qualification, who are so empowered can — I hope that senators on the Aboriginal committee will listen to this — and I quote from the bill:

. . . require a first nation to enter into an agreement for the management of its drinking water or waste water system in cooperation with a third party. . . .

That sounds onerous to me, honourable senators, that a person appointed by the Crown can require a First Nation to enter into an agreement with some undefined, unqualified third party, the XYZ water company, perhaps, to manage their water and waste water systems. That is in this bill.

Clause 4(1)(h) says that the Crown may "confer on any person" — not a constable or an officer — ". . . the power to seize and detain things found in the exercise of that power."

What? They are going to empower any person with the authority to seize and detain things that they find in the exercise of that power, including the power to apply for a warrant to conduct a search of a place — your place or my place? If I were a member of a First Nation, I would be worried about that provision.

I do not have the honour of being such a member, and I am still worried about it.

Honourable senators, please listen to this language. I will quote directly from the bill. Paragraph 4(1)(r) states that the Crown can make regulations to:

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;

Senator Mitchell: Unbelievable.

Senator Moore: They cannot do that.

Senator Banks: What? Honourable senators, if you were to look at the body of federal legislation, the laws of Canada, you would find in many, many of those laws clauses called non-derogation clauses. They occur in trade acts and in many environmental acts. They were put there in the first place as a red flag. They did not do anything. They reminded the courts, with a little red flag:, that they must pay attention to the fact that nothing in this bill must derogate from the rights enshrined and protected in section 35 of the Constitution Act. That is what it said. That was its purpose. Every one of those non-derogation clauses begins with the words "nothing in this act shall be construed" and then it goes on.

If one lined up all those non-derogation clauses from all those acts of Parliament in a row, one would see that they all start with those words and then they get fuzzier and fuzzier, as one goes along, until they get to the point that they are not interpretable by anyone.

We finally got the Department of Justice to agree, in a meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources, that the final wording, which in the vernacular of the trade seemed to try to swallow itself whole, that in fact one can derogate from those provisions and protections, because the Supreme Court of Canada has decided in a particular case that those rights are not inviolable. They are not absolute. They can, in the application of the concept of eminent domain, be abrogated in some larger interest. Therefore, the non-derogation clauses became fuzzier and fuzzier. However, this clause that I have just read to you, honourable senators, is not a non-derogation clause, but a derogation clause.

This bill contemplates the extent to which the regulations — not even laws or amendments — made by a minister of the Crown under this act may abrogate or derogate from those Aboriginal and treaty rights. That is what this bill says.

It sounds to me as though a minister of the Crown is being authorized legislatively in law, by this bill, to derogate and abrogate Aboriginal treaty rights in section 35 of the Constitution Act. That is what it says. I am only reading English, but I hope that attention will be paid to this provision by persons who understand the application and the practice of law, which is obviously a lot more complicated than the mere making of law that we do here.

Subclause 6(1) of this bill states:

Regulations made under this Act prevail over any laws or by-laws made by a first nation. . . .

Did someone not suggest that the idea of this act was to be a bridge to self-government? Clause 6 says, in effect, they can forget self-government because whatever they say will be overridden by whatever that minister of the Crown who happens to be in the office on that day says.

Clause 6(2) reads:

In respect of an aboriginal body named in column 1 of the schedule, this Act and the regulations 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 . . .

I will read that to you again. This is clause 6(2) of this bill. It reads:

In respect of an aboriginal body named in column 1 of the schedule, this Act and the regulations 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 . . .

I am speechless, senators. This is not a bridge to self-government; this is a slap in the face. This is arrogance beyond belief. It is astonishing that anyone would dare to present such a bill to this place —

Some Hon. Senators: Hear, hear!

Senator Banks: Our history, the history of this place is the protection of environmental interests and Aboriginal interests. That is what we have done, better than anybody else.

I was not speaking to Senator Brazeau when I said that it was a travesty, because I know that he was speaking on behalf of the government.

The expert panel, the commissioner and everyone in sight have argued that the First Nations must be included in and must drive a new institution to address the problems of safe drinking water. They are right, and the Senate committees were right, and Senator Grafstein was right. What we have instead, in clause 6(2), unless I am completely misreading or misinterpreting it, is a return to heavy-handed 19th century paternalism: There, there; we know what is best.

I hope that someone who knows the law better than I will look seriously at this provision if the bill goes to committee.

One final point, which is picayune by comparison with all the others, has to do with clause 9, which says that monies collected as fines, fees and charges by a person:

. . . pursuant to the regulations are not Indian moneys for the purposes of the Indian Act or public money for the purposes of the Financial Administration Act.

Honourable senators, there is good reason for that provision. It is to ensure that when monies for these fines are collected, for example, by the provinces, they are not susceptible of federal laws. However, we should amend that provision to say that when monies are collected by a provincial or territorial body they are not susceptible of the Indian Act or the Financial Administration Act.

Honourable senators, this bill would, in my view, put into law an abdication of federal responsibility. It is as simple as that. We may not like the Constitution; we may not like the Indian Act, but until we change the Constitution and until we change the Indian Act, we must make laws that are consistent with them, and not only with the words actually contained in the Constitution and the Indian Act but also with the conventions and practices that have arisen from the application of those acts. This bill does not do that, and so I urge senators, and particularly the members of the committee to which this bill might be sent for study, to be assiduous in their deliberations, to ask witnesses from all sides to be straightforward, and either to substantially refute my observations here — and I would be happy to be corrected — or to urge the defeat, or at least the significant amendment, of this poorly-conceived bill.

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