Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 17 - Evidence - February 2, 2011
OTTAWA, Wednesday, February 2, 2011
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill S-11, An Act respecting the safety of drinking water on first nation lands, met this day at 6:45 p.m. to give consideration to the bill.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: Honourable senators, good evening. I welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples. They will be watching either on CPAC or on the web.
I am Senator St. Germain, from British Columbia, and I have the honour of chairing this committee. The mandate is to examine legislation in matters relating to the Aboriginal peoples of Canada generally.
This evening we begin the study of Bill S-11, An Act respecting the safety of drinking water on first nation lands. We will hear from four witnesses from three departments: Indian and Northern Affairs Canada, the Department of Justice Canada and Health Canada.
[Translation]
Before hearing from our witnesses, I would like to introduce the committee members who are here this evening.
[English]
The deputy chair of this committee is Senator Dyck, from Saskatchewan. Next to her is Senator Campbell, from British Columbia; Senator Dallaire, from Quebec; Senator Banks, from Alberta; Senator Poirier, from New Brunswick; Senator Stewart Olsen, also from New Brunswick; Senator Brazeau, from Quebec; Senator Lang, from Yukon; Senator Demers, also from the province of Quebec; and last but not least, Senator Patterson, from Nunavut.
Members of the committee, please help me in welcoming our witnesses. From Indian and Northern Affairs Canada, we have Christine Cram, Assistant Deputy Minister, Education and Social Development Programs and Partnerships; and Karl Carisse, Senior Director, Strategic Initiatives Directorate, Community Infrastructure Branch, Education and Social Development Programs and Partnerships. From Health Canada, we have Shelagh Jane Woods, Director General, Primary Health Care and Public Health, First Nations and Inuit Health Branch; and from the Department of Justice Canada, we have Paul Salembier, General Counsel.
I do not know how many presentations we have, but we ask witnesses, as we usually do, to keep presentations as concise and precise as possible because we will have questions on this legislation.
Without further ado, Ms. Cram, you have the floor.
[Translation]
Christine Cram, Assistant Deputy Minister, Education and Social Development Programs and Partnerships, Indian and Northern Affairs Canada: Honourable senators, thank you for the opportunity you are giving us to speak to you today about Bill S-11, an Act respecting the safety of drinking water on first nation lands.
In April 2010, we came before you to discuss the progress we had made on the issue of drinking water on First Nation lands. At that time, we spoke about the need for legislation on drinking water and waste water. We are pleased to come back before you today to discuss this important health and safety matter.
[English]
Safe drinking water, the effective treatment of waste water and the protection of sources of drinking water in First Nation communities are critical to ensuring the health and safety of First Nations people. The proposed legislation, developed with Health Canada in consultation with First Nations, is an essential part of a comprehensive approach of assessment, investment and protection that this government is pursuing to address what is the single most important health and safety issue facing First Nations today.
While regulations for drinking water and waste water have long been in place in provinces and territories, there is currently no federal legislation governing drinking water and waste water in First Nation communities. That is why the ministers of Indian and Northern Affairs Canada and Health Canada are moving forward with this proposed legislation.
The federal government has protocols for centralized and decentralized drinking water and waste water systems in First Nation communities that set out standards for the design, operation and maintenance of drinking water systems. Health Canada's guidelines for Canadian drinking water quality identify the safety parameters for potentially harmful contaminants that may be found in drinking water. However, there is no legislative basis for ensuring compliance with either the protocol or the Health Canada guidelines.
Bill S-11 will enable the government to develop, in collaboration with First Nations, enforceable regulations that will safeguard drinking water within First Nation communities, filling the regulatory gap that currently exists between on-reserve and off-reserve water systems. This bill will help to protect the health and safety of First Nation communities as well as the substantial investments made in First Nation water and waste water infrastructure.
Three years ago, this committee heard from a series of experts and released the report entitled Safe Drinking Water for First Nations, which links directly to this proposed legislation. In fact, the committee's report was one of many in recent years to call for legislation in this area. The Office of the Auditor General and an expert panel have also made recommendations calling for the development of a legislative framework to help ensure that First Nations have safe, clean drinking water.
Bill S-11 enables proposed legislation that will allow the federal government to develop federal regulations for water and waste water in collaboration with First Nations, provinces and territories and other stakeholders on a province-by- province and territory-by-territory basis. Bill S-11 is intended to provide flexibility to develop the most appropriate solutions with First Nations.
The federal government will seek a phased-in approach for regulations so that implementation coincides with a community's ability to meet the regulatory requirements. This approach will help to ensure that First Nations and system operators have time to familiarize themselves with the new regulatory environment and that investments in infrastructure can be made to support compliance.
[Translation]
The government has worked with First Nations to develop this legislative initiative. The government continues to work very closely with First Nations, through regional First Nation organizations, in exploring options for the development of regulations.
In the last four years, drinking water and waste water options have been discussed with First Nations, with regional First Nation chiefs, with First Nation organizations, with representatives of provincial and territorial governments and with other stakeholders. Discussions on specific issues continue today with leaders of regional First Nation organizations across Canada.
The Government of Canada will continue those discussions with regional First Nation organizations in order to undertake a comprehensive analysis of the impact of the regulatory frameworks as they are developed. This will complement the 2009 impact analysis conducted by First Nations and underwritten by the government.
The Government of Canada will continue the discussions with regional First Nation organizations as preparations for a federal regulatory regime are being developed in order that the government's intentions are clear and that First Nations' concerns are well understood.
[English]
While some First Nations have expressed concerns, many First Nations are supportive of regulations governing safe water and waste water on reserve. At their January 2010 General Assembly, the Atlantic Policy Congress passed a resolution supporting the development of drinking water legislation. The Assembly of the First Nations of Quebec and Labrador adopted a unanimous resolution at their annual General Assembly on June 2010 supporting continuing discussions with the Government of Canada on regulatory development. The Atlantic Policy Congress and the Assembly of the First Nations of Quebec and Labrador, AFNQL, as well as the Federation of Saskatchewan Indian Nations, FSIN, have all submitted regulatory development proposals outlining their approaches to regulatory development in their provinces. The Mohawk Council of Akwesasne has also expressed support for maintaining an open dialogue with the government on developing a regulatory regime for safe drinking water in First Nation communities. The government will seek further consultation with First Nation organizations as well as the provinces and territories through each phase of the development of a federal regulatory regime to ensure that the regulations are tailored to the specific needs of First Nation communities.
Since 2006, the government has pursued a comprehensive strategy of "assess, invest and protect.'' Following the recommendations of this committee, in May, 2009 the Government of Canada commissioned an independent third party to perform a national assessment of First Nations water and waste water systems.
About 1700 water and waste water systems in approximately 570 First Nation communities have been visited and assessed. This assessment is the most comprehensive examination of the state of water and waste water infrastructure on reserve that has ever been carried out. Results from this assessment are being compiled and should be finalized for release in the spring of 2011.
Between 2006 and 2012, the Government of Canada will have invested over $2.5 billion in First Nation water and waste water infrastructure, including investments through the First Nations Water and Wastewater Action Plan, first announced in April 2008 and now extended into 2012, for a total of $660 million over four years.
Bill S-11 represents a particularly vital piece of this strategy. It will provide the mandate to enact regulations that are legally enforceable that will protect investments in infrastructure, training and operation and maintenance. In turn, this protection will contribute to improved outcomes in the ongoing efforts to achieve safe water in First Nation communities.
As a result of the First Nations Water and Wastewater Action Plan, the number of certified water treatment system operators has increased from 35 per cent, or 392, in November 2006 to 60 per cent, or 683, as of March 2010. These investments also support increased funding for the Circuit Rider Training Program, which is an important vehicle through which First Nations operators receive ongoing onsite training and mentoring on how to operate their drinking water and waste water systems. In 2009, 11 additional trainers were hired, bringing the total number of Circuit Rider Trainers to 65.
[Translation]
We understand that some First Nations have concerns about Bill S-11. I would like to take this opportunity to respond to those concerns.
[English]
Some First Nations have raised concerns that the bill provides broad authority to the federal government to delegate authority. Our intent was to ensure that the language included in the bill provided enough flexibility to allow for First Nation bodies or other agents to carry out their functions pursuant to the regulations.
Concerns have also been expressed that First Nation communities may not have the capacity to enforce and comply with the proposed regulatory regime. The government's intent is that the regulatory regime proposed in Bill S-11 will be rolled out in a phased approach over a number of years to ensure that its compliance component will not come into effect until such time as First Nations have the ability to comply.
With respect to concerns about the impact of Bill S-11 on Aboriginal and treaty rights, as with all legislation, section 35 of the Constitution Act, which protects Aboriginal and treaty rights, applies to Bill S-11.
Safe drinking water, the effective treatment of waste water and the protection of sources of drinking water in First Nation communities are critical to ensuring the health and safety of First Nation people. Bill S-11 is an essential part of this government's strategy to assess, invest and protect in order to ensure that First Nations have the same protections as other Canadians. The lack of federal legislation governing drinking water and waste water in First Nation communities means that there is no legislative basis for ensuring compliance with either the INAC water protocols or the Health Canada guidelines. This legislation will fill that regulatory gap. It will help protect the health and safety of First Nation communities and the substantial investments made in First Nation water and waste water infrastructure, and ensure comparability of water quality between on- and off-reserve communities.
We appreciate the opportunity to be part of these committee hearings and look forward to hearing from First Nations and other stakeholders in the review of Bill S-11. We will be pleased to answer any questions honourable senators may have.
The Chair: Ms. Cram, you said that "the government's intent is that the regulatory regime proposed in Bill S-11 will be rolled out in a phased approach over a number of years to ensure that the compliance component will not come into effect until such time as First Nations have the ability to comply.''
What will happen in the interim with regard to their water? If someone has bad water, they want it fixed virtually instantaneously. They do not want to leave people exposed to improper drinking water.
Can you explain to the committee how this approach will work so that people will not be exposed to unsafe drinking water?
Ms. Cram: Thank you for that question. Our plan is to work on the things in parallel. As I said, we currently have our three-pronged strategy of invest, protect and assess, and we are continuing to work on that strategy.
As I mentioned, we have a national assessment under way. The communities have all been visited and the reports are starting to come in. Those reports need to be assessed, and we are looking to have that assessment released in the spring of this year. That assessment will allow us to develop an investment plan on water, focusing on the highest priority systems, because that assessment is looking not only at the infrastructure requirements but also at the capacity requirements, the training requirements and the operations and maintenance needed to support those systems.
We will continue to make improvements as we have done in the past. We will have the benefit of that national assessment to enable us to develop an investment plan. We will start making those investments based on the findings, and will also beef up the training and the operating side, which needs to be worked on.
The idea is that all this work will continue in parallel. It will take time to develop the regulatory frameworks. We expect them to be done on a province-by-province basis. We will start working on them. We are hoping that the work will all come together with the regulations being ready, the investment plan being implemented, and the training and capacity support being in place.
Have I answered your question?
The Chair: Yes, thank you.
Senator Dyck: Thank you for your presentation. It was clear and concise.
I will start on the question of consultation. In your presentation, you said that the government has been working with First Nations in the development of this legislation. What does that mean? You say that you have worked with some organizations that have contributed to this legislation, yet some of us have received letters from some First Nations organizations saying they do not believe they have been consulted.
From your perspective, what was the extent of those consultations and what real input into the bill were these First Nations organizations able to provide?
Karl Carisse, Senior Director, Strategic Initiatives Directorate, Community Infrastructure Branch, Education and Social Development Programs and Partnerships, Indian and Northern Affairs Canada: We have carried out a process of continuous consultation that started in 2006 with a panel of experts going across the country. This expert panel was led by Harry Swain, a former deputy minister of INAC. The panel talked to communities across the country about how to fill the regulatory gap. Over 500 representatives talked with the expert panel.
Once the expert panel had completed its work we had a meeting in Ottawa with First Nations technicians from across the country to talk about the results. We kept moving with that approach. We spent a number of weeks in the spring and summer of 2008 approaching different First Nations organizations. We attended their annual meetings and made presentations about water legislation and what framework legislation would look like, saying that we would move forward with more formal engagement sessions.
Those formal engagement sessions happened in February and March of 2009. There were 13 sessions across the country. We paid for someone from the leadership of each community in Canada, as well as a technician, to join us at those sessions to talk about a regulatory-legislative regime. We also invited representatives from the technical organizations and tribal councils to obtain a holistic view of the issues and to ask their opinions.
We prepared a discussion paper at that time to help stimulate the discussion, and we also provided funding to the regional organizations so they could prepare an impact analysis. The government took a step back after the funding was provided to obtain a sense from the communities of how legislation-regulation would impact communities in the provinces and regions.
Following that process, we received a lot of correspondence on the outcomes of the sessions and the impact analyses, and we went back and had discussions with the regional leadership across the country. We are still meeting with the leadership. Just before Christmas I made presentations to the Alberta association of treaty chiefs. We continue to engage. There was quite a bit of input from First Nations provided on the bill.
Senator Dyck: For clarification, you said that the meetings are continuing now. The bill is before us, so how can those meetings contribute to improvement of the bill?
Mr. Carisse: The meetings we are having currently are more about how we will move to the next step and whether legislation should be passed and receive Royal Assent. There are different ways we can have regulatory development. We received proposals from the FSIN in Saskatchewan and the AFNQL in Quebec and Labrador. We also received proposals from the Atlantic Policy Congress on how they think we could develop regulations in that area. The legislation itself was based a lot on what we heard at those sessions.
We heard a lot at the beginning from the Assembly of First Nations, which also attended some of the sessions. They were invited to all the national sessions.
Senator Dyck: You mentioned the Federation of Saskatchewan Indian Nations, FSIN. The regulations that they submitted were submitted on their own, without collaboration with your offices. Is that correct?
Mr. Carisse: We have been receiving proposals. The one I referred to is something that we have been collaborating on with the vice chiefs at the FSIN to see how we can move forward.
Senator Patterson: Our committee has completed work on this issue in the past. It is obviously an important issue to be improved on in First Nations communities. My question is about the concern I have heard expressed by First Nations that the legislation fails to acknowledge their jurisdiction over water, the issue of Aboriginal and treaty rights and I guess the inherent right to self-government. It seems to me that is a key issue with the Aboriginal community. Can you tell us how the government approach has dealt with that issue, or perhaps has not dealt with that issue? Is there an option to consider addressing these concerns on the part of First Nations?
Paul Salembier, General Counsel, Department of Justice Canada: I can address that question, at least partially. The plan in developing regulations is to have the First Nations in the region to which the regulations will apply sit with Canada and develop the regulations line by line. The First Nations that will be affected by the rules that will govern their communities will be involved in developing them.
In terms of Aboriginal and treaty rights, normally, part of legislation that protects drinking water deals with the protection of sources of drinking water. In other words, legislation limits the use of land around sources of drinking water to ensure that the drinking water does not become contaminated. Everyone knows about the problems in Walkerton a few years ago. Those problems came from having livestock too close to the well from which the town's drinking water came.
To the extent that you deal with limiting the use of land, yes, it would probably be considered to affect the Aboriginal or treaty right related to the use of their own lands. That is why we want them to be involved, and we hope that everyone will recognize that minor limitations on the use of land in small areas can be justified in terms of protecting the health and safety of the members of that community.
I think that is the government's approach regarding Aboriginal and treaty rights, and we hope that, at the end of the day, by the time the First Nations have worked with us and developed the rules together with us, that no one will question any impact that the rules will have on their rights, because they will see how any limitations are aimed at protecting their members.
Senator Patterson: I hope you are right and it will work out that way. I hear in some quarters that the issue is a matter of principle, even though the purposes of the legislation seem to be in the public interest and in the interests of Aboriginal peoples. The issue seems to be a matter of principle, with at least some groups I have met with. I wish you well in that approach.
My other question is technical. I am curious about the non-derogation clause in this bill. It provides for non- derogation from Aboriginal or treaty rights in the regulations rather than in the legislation, which I think is probably the more common way of dealing with non-derogation.
Is it more common to have the non-derogation clause in the legislation as an interpretation clause to the statute? Can you explain why you focused on the regulations rather than legislation to discuss non-derogation?
Mr. Salembier: I can address that question as well.
Bills with a non-derogation clause are normally statutes where the rules that will affect the First Nations are themselves in the statutes, so it makes sense to have the non-derogation clause in the same enactment as the rules.
This is what we call a framework act, and there are virtually no rules affecting First Nations directly in the bill. The bill simply provides authority to make regulations on a region-by-region basis, and in those regulations we will find the rules. In that sense, it is appropriate to have the non-derogation clause in the same enactment where the rules will be. That is one aspect.
An added benefit to having non-derogation in the regulations is that it allows First Nations who participate in the development of the regulations to craft a non-derogation clause that suits their own particular Aboriginal treaty rights. We are not forcing a single clause on all different groups across the country. They can customize a clause to suit their own purposes.
The third reason is a question of risk. The problem with non-derogation clauses, as I am sure the members here are well aware, is that the courts have never interpreted exactly what a non-derogation clause does. I know the committee has heard witnesses who have said, "I think its means this,'' and other witness who have said, "I think it means that,'' or, "I would like the courts to say it means this or that.''
Given the uncertainty about the effect, there is a risk that if we include the clause in the bill itself, it will tie the government's hands in making the regulations and, in fact, might prevent the government from even making any regulations that might affect something like protection of sources of drinking water. That is a risk we want to avoid.
Senator Patterson: Thank you for that answer. I have one more question, but I can wait until the second round.
Senator Poirier: Thank you for the presentation. I only have one question, unless something leads from that one question to something else. The question is around the establishment of the offences. The bill says:
Where a contravention of the regulations that is an offence under paragraph (1)(f) would be an offence under provincial law if it occurred outside first nation lands in the province in which the contravention occurs, the fine or term of imprisonment imposed for the contravention by the regulations may not exceed that imposed by provincial law for such a contravention.
I am curious how they will deal with that provision when they have a First Nation community that is divided by two different provinces and may have two different laws.
Mr. Salembier: The option is to have two different sets of rules regarding portions of the community in each province or to have a single set of rules that adopts the limits in one province that are the lower limits and that way they will comply with that requirement of the statute for both provinces.
If a First Nation spans Quebec and Ontario, and Ontario has a fine of $1,000 and Quebec has a fine of $2,000, they then adopt the lower fine, and that way they comply with the upper limit in both provinces.
Senator Poirier: Will that be negotiated on a one-to-one basis with different First Nations depending on where they are, or how do you plan to implement that provision?
Mr. Salembier: I think we will want input from the particular First Nation whose lands span the two provinces, and I assume they will be the ones who will raise this sort of issue. We will work it out together with them.
Senator Stewart Olsen: Thank you for your presentation.
There is no question that safe drinking water and the protection of the health and safety of First Nations are paramount and they are the reasons for this legislation.
I have a couple of questions. They are more technical than anything and they are on the regulations. My first one is on section 4(p). It talks about requiring "permits to be obtained as a condition of engaging in any activity on first nation lands that could affect the quality of drinking water, or any activity governed by the regulations.''
My question is a clarification for me. It is probably clear to you. Who will issue the permits?
Mr. Salembier: If we have a permitting scheme, the regulation will set out who will issue the permit. Therefore, the regulations might say one needs a permit from the First Nation government itself. If there is an inspecting body, a water commission of sorts for that region, it might require a permit from the water commission. It will be decided on a case-by-case basis. The answer will come naturally once the permitting scheme is designed.
Senator Stewart Olsen: In essence, this enabling legislation is a step forward in negotiating these permitting schemes individually, province by province and First Nation by First Nation. This bill is only the enabling legislation that will allow for that process and the development that goes on further.
Mr. Salembier: Exactly.
Senator Lang: I was on this committee as a member a year and a half ago and I recall that significant amounts of money, as enumerated by you earlier, had been committed by the government over the last four years; $2.5 billion or $660 million a year.
Senator Banks: It was $660 million over four years.
Senator Lang: Perhaps you can correct that for me.
Ms. Cram: I gave two numbers. I said that between the period 2006 and 2012, the government will have spent $2.5 billion. Of that, the $660 million over four years is the First Nations water and waste water action plan. It is a particular four-year initiative and it works out to $165 million per year.
Senator Lang: I am trying to narrow down the success of the program so we have an idea of how many communities have been affected by the commitments that have been made by Parliament and, in turn, by you in meeting the demands that are out there.
My understanding is that some 193 high-risk drinking water systems were identified when you began this program. Perhaps you can enlighten us as to the success of this program so we are aware of what they are, and so viewers out there can see what is being accomplished.
Ms. Cram: I am trying to remember how many high-risk systems there were, and maybe I can find that for you.
The last time we produced a progress report, which was in March of 2010 and covered the period between April 2009 and March 2010, the high-risk systems had dropped to 49 water systems and 61 waste water systems. The drop is significant from prior to that time.
Also, I mentioned in my remarks about the increase in the Circuit Rider Training Program and the coverage of Circuit Rider Training Program and certified operators. The focus has been on trying to reduce the risk of the systems and, as well, to increase the capacity of operators and the assistance to operators. Those reductions of risk and increase in capacity have occurred.
For some of the infrastructure investments, we have not seen the benefit and will not see the benefit until construction is completed. Under Canada's Economic Action Plan, 18 more projects have been undertaken for $193 million over two years. That construction will be completed by March 31 of this year and we will see more beneficial impacts of that investment.
Senator Lang: I understand there were also a number of communities identified for both high-risk drinking water systems and that required drinking water advisories. I understand that you identified them and, over this period of time, you corrected a number of them. Perhaps you can enlighten us on those projects as well.
Ms. Cram: Initially, there were 21 priority communities and, as you indicated, in 2006, these communities were both high risk and had a drinking water advisory in place. In the last progress report, that number was reduced to three communities. Work is under way in all three communities. They have different challenges in each community. Senator Brazeau knows one of those communities very well because it is Kitigan Zibi.
As more homes are connected to water treatment plants, that work is helping, but some homes, for example, in Kitigan Zibi, that are in outlying areas will have a problem because of the high levels of uranium in the water. We have action plans for each of the three communities still on that list.
Senator Lang: In many ways, a good story is unfolding here for all of us around this table, especially people like Senator Banks who have been here for some time.
Are you undertaking any public relations campaign to outline what measures the department is taking; to let people know what measures the Government of Canada is taking and the success of those measures?
Senator Banks: Only you.
Senator Lang: It is a start. You could follow up.
The Chair: Senator Lang, you just started the campaign.
Senator Campbell: Thank you for the humour, Senator Lang, and thank you to the witnesses for coming before us.
Dr. Harry Swain, the chair of the expert panel on safe drinking water, said in the report that his conclusion is
. . . if we want to see the completion of what has been a fairly considerable national effort to get good water on Indian reserves, then we should worry about the basic resources and then about a regulatory regime.
I think that was good advice then and my question is: Have we addressed the basic resources? We are now moving into that regulatory regime.
Ms. Cram: When you ask whether we have addressed resources, I mentioned that we have undertaken — I would say largely in response to this committee's work — a national assessment, which is coming to a conclusion. With information from the national assessment, we will develop a national investment plan as to where we should put resources in terms of high risk, and where capacity is needed. That is our plan.
If Dr. Swain was recommending that first we should make all our investments, I do not think the investments ever stop. Investments that have to be made will be ongoing. Plants will need replacing at certain frequencies. Operators will turn over. Investment is ongoing. We have to look at how much money we have, and I have talked about how much money we have, and then how do we direct that money to where it is needed so that the communities that need capacity to meet the regulations will be able to build it or obtain it.
We feel strongly we should do those things in parallel and that we should not wait on the regulatory development and the legislation until such time as everything is met because the situation does not stay static.
Senator Campbell: Everyone has dealt with the act but my questions are more on the subject of the water.
Does good science in good water trump ideology? I believe I heard that if somebody wants to have livestock around the area that is their water source, they can obtain a variance in the regulation, depending on who it is.
Did I miss that point or is that generally right?
Ms. Cram: I do not think we said they can obtain a variance. We said that the regulations would be developed in consultation with First Nations. We need to have that conversation with them.
Many First Nations have land use plans in place. We would want to look at those plans and see what the results of those land use plans were in terms of where things were situated.
Part of it is information as well, to look at how to ensure there are land use plans, and that the First Nation community will have some control over what its individual members do vis-à-vis where they locate things.
Senator Campbell: I do not want to go into rights, the Constitution or the rest of it, but good science is good science. If it says they should not do this, I do not believe that somebody in the community — or, in fact, anyone else — has the right to jeopardize that water.
We are going for good water. I think there should be consultation. I believe that is critical but at the same time, we cannot trump good science. We know what creates good water. We know the circumstances surrounding where good water is located.
I have real difficulty with allowing somebody to say that because we have the right, we will not follow that science. I think we are wasting money if we allow that situation to happen.
Ms. Cram: Senator, you will have no argument from us. We agree with what you suggest. What there needs to be is a regulatory regime that empowers a chief and council to ensure that situation takes place.
Senator Campbell: I want to be clear. I do not think anybody wants bad water. I do not believe anybody would knowingly create bad water, but at some point we have to recognize good science.
Senator Brazeau: Thank you all for being here this evening. We have had many conversations about this topic in the last couple of years.
You mentioned earlier that resources were provided for the consultations — I am stepping back a little bit — to allow potentially every First Nations community to participate in these consultations. If resources were provided, can you talk about what the participation rates were? We have a little over 600 communities across the country.
Second, what was the response rate with respect to those who provided impact assessments, following their participation?
Mr. Carisse: For the impact assessments, some were very good. For instance, in the Atlantic region, the Atlantic Policy Congress, APC, and others took the funds that were provided — we know how much funding was needed because we had conducted similar exercises before with third parties and consultants — and they took the time to look at it carefully and develop an impact analysis.
We had certain parameters of what we would see in regulations. Basically, we took what exists in regulations across Canada, such as operator certification, the design of system, construction of a system, et cetera, and we said, what exists within your own region and what would be the impact of having a regulatory enforcement regime?
We received responses from everyone but some took more time or a different bent. For instance, the impact analysis we received from Alberta was focused on a legal bent and others were more on a technical basis of what existed in different provinces already.
If memory serves me correctly, over 700 First Nation participants came. It may be a small number compared to the fact that there are 600 communities and we invited 2 people per community, but we had a good representation with the folks that were there.
Some representation was bigger than others. The one in Saskatoon had over 100 representatives; others were a bit smaller. However, between chiefs or councillors, as well as technicians, a good mix of leadership showed up.
We received good responses from all the people that were there. It was nice to have the technicians there as well to understand how this legislation would impact them on a day-to-day basis. It worked out well.
Senator Brazeau: My second question was raised earlier. One concern that has been raised is this question of resources. Some people said these regulations are being jammed down people's throats when, in fact, it is not true. There will be joint participation from First Nations communities and the government.
If this legislation passes, how can INAC assure First Nations people that enough resources will be there to ensure that operators are certified and properly trained, that the infrastructure will be built and developed and that the imposition of penalties, in the case of contraventions, will be respected?
Second, is there enough money in the past budgets now or will the monies be taken from somewhere else?
Ms. Cram: I talked about the national assessment. Until we see it and we see what it suggests, we do not necessarily know exactly how much money will be needed to make all the improvements suggested.
I will back up and say, the national assessment is looking at what it will take today to upgrade the systems; to meet either the protocols or whatever the provincial standard is. The assessment is also looking at what the growth projections are for 10 years out.
When they build a water plant, they are not necessarily looking at building it for today. They should not be. They need to be thinking about building it for the future.
We expect the costs that will come out of the national assessment will be high, particularly since it will look at a 10- year forecast. We are not expecting to address all that cost in one year. We will look at the resources we have available and then approach the higher risk areas first.
We will have to develop a national investment plan that takes into account not only the resources we have, but also the priorities and needs. We will develop that plan also based on how we think the regulatory development will unfold.
We are not expecting to put into place all the regulatory developments simultaneously across the country. We will work out a plan. We are saying we will not implement the regulations until such time as First Nations can comply because otherwise, we feel it does not make any sense. We know if we were to enforce regulations tomorrow, everyone would not be able to comply because there are gaps both in infrastructure and capacity.
The whole thing has to come together in a sensible plan that rolls out over time and that is affordable. Building a water plant, even if they want to build it immediately, takes a long time to design, build and become operational. We need to have a sensible plan.
Senator Brazeau: To First Nations people out there who may not be in tune with, or aware of, the technicalities of this legislation — and some are listening to us this evening or will see this meeting in a rebroadcast — what would you tell them about how important it is for this legislation to pass and how it will benefit them?
Ms. Cram: We are hearing all the time from First Nations that they should have the same quality of water as every other Canadian. I am sure people have seen stories in the media that suggest there are communities that do not have that water quality. We strongly believe First Nations are right; that every Canadian in this country, regardless of where they live, should have access to clean water. We believe that this legislation is a fundamental aspect of making that access happen.
Senator Brazeau: I appreciate your responses.
The Chair: I have a supplementary question. I am looking at what has been accomplished, which has been remarkable. However, my question is this: How many communities are still high risk? Is it three or four? If this were about non-Aboriginal people in any other town in Canada, such as in Walkerton and North Battleford, the situation would be rectified immediately. How are these people in high-risk areas operating? Are there emergency measures in these high-risk areas? Every community in Canada should be treated in the same way.
What has been accomplished, and the money spent, is remarkable. However, are there provisions in these high-risk areas to give people access to safe drinking water?
Shelagh Jane Woods, Director General, Primary Health Care and Public Health, First Nations and Inuit Health Branch, Health Canada: I want to ensure that everyone understands that we are not moving from nothing to a regulatory regime. What we have in place is as good as it can be without regulation enforcement and the ability to compel compliance.
We actually have a good system. Ms. Cram outlined how we use the general Health Canada drinking water quality guidelines. We cannot compel anyone to follow those guidelines, but we have done well. As one of the senators said, no one knowingly wants bad water. We have tremendous collaboration with First Nations. We must give them full credit. They understand how important safe drinking water is to public health and safety.
The regulations will help us, but no one should think that a high-risk community is just left to sit there because all kinds of emergency provisions go into place. Health Canada sends environmental health officers into a community when there is a problem. In some cases, officers perform regular testing for water quality; and in other cases they supervise what we call the community-based water monitors.
Much of the money that Health Canada has received through the First Nations Water and Wastewater Action Plan has gone to the training of community-based water monitors who provide testing and inspections in their own communities.
Those inspections are performed in exactly the same way as inspections off-reserve and they follow the same quality guidelines. For example, we require that they send samples to accredited laboratories, et cetera. The regime is a tight one. When there is a problem, our environmental health officers go in and talk with the chief and council. The chief and council will place a drinking water advisory on the advice of the environmental health officer.
In my seven and a half years at Health Canada, I have never heard of a First Nation community saying, no, we will not do that. In extreme cases when there is a prolonged drinking water advisory, other measures may be taken, such as shipping water into a community. Usually that measure is taken by our partners at the Department of Indian and Northern Affairs. In no case should people think that communities are left on their own to deal with bad water for a long period of time.
One of the major accomplishments over the past few years of investments has been the reduction in the duration of drinking water advisories to half, following the investments under the First Nations Water and Wastewater Action Plan. That reduction is a sign that things continue to improve.
The Chair: Thank you, Ms. Woods. Senator Banks?
Senator Banks: Is Senator Dallaire not a member of the committee?
The Chair: Yes, he is.
Senator Dallaire: Should he not go first?
The Chair: This is a democracy, Senator Banks, in its purest form.
Senator Banks: Thank you. I should explain that I have a bias, not only with respect to this bill, which I oppose, but also with respect to the concept of enabling legislation or, as it is sometimes called, framework legislation.
The chair will agree with me that we see much more of that legislation today than we used to see, which was not that long ago, Senator Lang. We received enabling framework legislation much less frequently than we do now. It used to be the case that Parliament liked to say: How will this legislation work? The question would receive an answer. We would then deliberate on the proposed legislation and pass it.
In this case and in the case of much enabling legislation, as the witnesses have told us in their answer to the questions, we wonder how this will work. The response seems to be: We will show you later when we figure it out. Mr. Salembier said that First Nations will see how valuable this legislation will be once we put those regulations into place. At this time, we have no idea what those regulations will be. That is one, but only one, reason that I oppose this bill.
I have a technical question about the bill. It has two lists in the Schedule. How does a First Nation become placed on list number one? What happens? Who decides that placement?
Mr. Salembier: A First Nation can be placed on lists in one of two ways. First, some First Nation communities in Yukon that technically do not have reserve lands want to benefit from the bill. Those First Nations will be placed on the list, together with a legal description of the lands, and to clarify that the protection of the bill can extend to those First Nations.
The second group are First Nations that have entered already into self-government agreements with Canada. Among that group there are two types: Some are like Nisga'a or Tsawwassen.
Senator Banks: Those are the only two, I believe.
Mr. Salembier: Yes, their lands are under section 92 of provincial jurisdiction. This bill will not have an impact on them. Anything they do vis-à-vis their lands and drinking water will be negotiated between them and the province.
Others like Westbank First Nation and perhaps Cree-Naskapi are still under section 91. If they looked at the regulations and saw that the regulations would give them a better level of protection than they currently have, or that, rather than spending $100,000 developing their own regime they can have it for free, they can request to be put on the list. Otherwise, the bill will not apply to them.
Senator Banks: Some nations can request to be put on the list and other nations might be put on that list by the minister?
Mr. Salembier: That is right but only for First Nations that are not self-governing.
Senator Banks: Those that do not have a deal yet.
Mr. Salembier: Right.
Senator Banks: You addressed this question before. When we are dealing with framework or enabling legislation, we cannot deal with policy. Many of the questions asked of you are on policy. How will you do this? The answers have to do with the policy of the government. We must deal with a piece of proposed legislation. At clause 6(2), the bill says, in respect of those First Nations who are on list number one:
(2) 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, in the event of a conflict or inconsistency between this Act and that agreement or Act.
You addressed that issue earlier by saying that we are talking about land that is contiguous to a stream of water or a plant or other. Is the department amenable to an amendment to that section that somehow circumscribes the extent to which the extinguishment of rights, as stated in the bill, might occur by describing the kinds of land and incursions that might be made against those rights, rather than a blanket one, as set out in clause 6(2)?
Mr. Salembier: Do you want to address that question, Ms. Cram?
Senator Banks: Is that not a Department of Justice question?
Ms. Cram: I guess I do not understand the extinguishment of rights aspect.
Senator Banks: Let me read it again:
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, in the event of a conflict or inconsistency between this Act and that agreement or Act.
Writ large, that clause is an extinguishment of rights, as I read it. The First Nation may have agreed to it; they may have looked at the regulations and said, "Yes, we can reach for that cherry that is being held out, but we agree that our self-government agreement will be abrogated by so doing.''
That is how I read this clause. Maybe I am wrong.
Ms. Cram: My learned counsel here will take that question.
Mr. Salembier: To start with, you are right: This clause will apply only in rare cases where a self-governing First Nation has said, "Yes, we want to be part of the regime.''
The reason the clause is there is so that we would not have a First Nation who says, "Okay, we will be part of the regime and comply with the rules'' but as soon as something happens, they would then say, "Hold on, we will not comply with it any longer because we will assert our own self-government agreement, or our own act of Parliament negates the rules that we just agreed we want to be party to and to comply with in order to protect our citizens.''
The clause says that if a self-governing First Nation wants to come under this legislation — for example, perhaps they would be under the jurisdiction of a regional water authority who would send around inspectors that would say, "Yes, your plant operator must be certified'' — for the legislation to make any sense at all, we must ensure that once a First Nation is in, they have to comply with the legislation because if compliance is optional, then really we have achieved nothing.
Senator Banks: Are you amenable to — I know it would be complicated — an amendment to this clause, clause 6(2), which would somehow circumscribe the extent to which this provision would apply by a description such as the one you gave, rather than leaving it, as I see it, wide open?
Ms. Cram: Senator, you have raised a question about whether the government is prepared to contemplate amendments to the legislation. In answer to that question, I would say the decision to amend the bill is for parliamentarians to decide and rests with this committee. We expect that this committee will consider if, indeed, they think there should be amendments to the legislation. I cannot speak on the part of the government as to what they are prepared to contemplate. However, we expect that the committee could well come up with suggestions for improvements.
Senator Banks: Thank you. I will wait for the second round.
Senator Dallaire: As a follow-up to that question, you have argued that you need a hammer if someone does not want to play by the rules and things go bad. However, you also argued in this framework legislation that you will negotiate with every individual nation the regulations that will give them room to manoeuvre with regard to how they will be engaged in this legislation.
Is that not talking from both sides of your mouth on the same subject? If you are to work it out in the regulations, why do you need such a significant hammer in this legislation?
Ms. Cram: That provision applies only to those First Nations that are self-governing and have their own agreements, and then choose to opt into this legislation. Part of that choice is the status of their current legislation. All those First Nations that are self-governing have legislation in place.
I am probably not using the language that the Department of Justice would use, but it is a relationship-of-laws issue; it must be clear what regime applies.
Also, Senator Dallaire, we do not necessarily see the regulatory process being every individual First Nation by First Nation; rather, we see it occurring on more of a regional basis. When we look at what kind of enforcement regime, et cetera, they would have, we need to have a broader base.
In addition, the starting point is to look at the provincial regime and what they have to do to modify it so it will work well for First Nation communities. I will give you an example.
Some provincial regimes do not deal with individual wells and septic tanks; they deal only with communal systems. To have the regime apply on reserve, they have to look at that regime and say, "Working with First Nations, how would we modify this so it will work in a First Nations community?''
Senator Dallaire: You are the ADM for Education and Social Development Programs and Partnerships; do you have similar legislation to this on the education side to have people follow the rules and work out arrangements with provincial governments?
Ms. Cram: That is a good question. That is one of the big gaps on the education front. On December 9, 2010, an announcement was made by the Minister of Indian Affairs and Northern Development about launching a panel of experts to look into the need for legislation in the area of education.
Senator Dallaire: We have heard much about the problems in education, but I am finding —
The Chair: Senator —
Senator Dallaire: I am coming to my point.
The Chair: Okay. I would like to stay on subject.
Senator Dallaire: I am getting there. You have your plan of action for drinking water on First Nation communities, which has been evolving positively, yet you bring in this requirement for legislation in 2009 after your system seems to be working and evolving positively.
Was this requirement for legislation initiated by you in the department? Was this decision a political one, or a sign that your plan maybe is not working as well as you are saying and that you needed something like legislation to achieve the ultimate aim of safe drinking water?
Ms. Cram: In 2006, when we started recognizing there were serious problems with water and there needed to be far more proactive action on the part of government, we had not come to the conclusion of what was completely needed. However, we looked across the country and we saw that on reserve was the only place there was no legislation governing water.
Also, the Office of the Auditor General had made comments and the Audit of Sustainable Development had made observations about it. Thus, the government thought that this gap was a big one; we can probably go so far with making improvements, but we need this extra step. Indeed, then this committee looked at the issue and also recommended that we should look at the legislation.
Senator Dallaire: You referred to the Auditor General, which was a big reference. This committee looked at those comments, and I remember being part of that. The committee also said that necessary funds for all identified resource needs for First Nation communities in relation to the delivery of safe drinking water should be dedicated by INAC and should be a pre-condition to legislation.
You are using the Auditor General as saying maybe you do not have a good grip on how the funds are being expended and control of that spending, yet you did not tell us that you had a well-laid-out cash line of either new money or within your budget to guarantee that you would provide the resources to make this thing happen. Then you give us a framework legislation in which you will be able to articulate all kinds of regulations as per what the department wants to do.
To me, that exercise seems to be a one-sided one. Unless the Auditor General ultimately is referencing this legislation, I still do not see why you need this legislation if you have a plan that is working.
Ms. Cram: I would ask the question: Why do the provinces and territories feel they need legislation in this area? I think it is because they recognize that they do not have all the levers at their disposal if they do not have legislation in place. This legislation is an element that we think we need to have. We do not disagree that we need to be focused on investments as well, both for infrastructure and capacity. However, we need to have a completely well rounded approach here or we will not achieve the results ultimately that we need.
Senator Dallaire: I think it is inappropriate to bring forward legislation in which you have not identified and laid out the dedicated demand of cash or the cash flow requirement to implement it.
As you said, you are looking at a 10-year plan. You are bringing in legislation to implement the plan without that plan having been laid out.
I worked for a department where we could not come forward with something like this legislation unless we had a 15- year cash line, including the life-cycle management. Yet, you are not guaranteeing that all the money will be there to implement this legislation in an appropriate fashion — without it being a hammer over the First Nations to comply without necessarily having the resources to be able to comply.
Ms. Cram: I did mention that, by 2012, we will have spent $2.5 billion.
Senator Dallaire: That figure does not tell me that is the actual requirement. That figure says what you have been able to put into it.
Ms. Cram: We do not know. I spoke about the national assessment. Until we see the assessment, we will not know what the full need is for the 10-year growth that I spoke of. We have $197.5 million a year in our A-Base for water expenditures. We have had additional monies above that in the past, and our hope is that would be the case in the future.
Senator Dallaire: Well, hope is not a method, so I think this legislation is premature until you have the ability to guarantee the resources to implement it.
Senator Brazeau: After the work started in 2006, this work essentially followed what happened in Kashechewan; is that correct?
Ms. Cram: That is correct.
Senator Brazeau: Thank you. Along the lines of Senator Dallaire's question, hypothetically, let us say this legislation does not pass. How long will First Nations people, including those living in my community, have to wait for access to clean and safe drinking water?
Ms. Cram: That is a good question.
Senator Brazeau: That is why we need the legislation.
Ms. Cram: If there is legislation, another way to have resources focused is on its implementation.
Senator Patterson: Right.
The Chair: We are on the second round now.
Senator Dyck: The question that I will pose concerns the legislative approach you have taken in this bill. The Report of the Expert Panel on Safe Drinking Water identified shortcomings to proceeding with the option you have taken, incorporating provincial laws or adapting provincial laws. The panel noted that it appears to be the weaker option, owing to gaps and variations in these regimes, the reluctance of First Nations to accept this approach and the jurisdictional complexities of involving another level of government in water management.
Why is the government proceeding with this approach, despite substantive concerns expressed by the expert panel and by many First Nations? Why, and on what basis, did the government reject other options that were proposed by the expert panel, such as adopting a federal statute, creating a single regime or even using Aboriginal customary law? Why did the government settle on the incorporation of provincial law?
Mr. Carisse: When we conducted the engagement sessions, we went out looking at the question of incorporation of provincial regulation but with adaptations. This approach is the big difference. The expert panel was looking at straight incorporation by reference, which takes what exists in the province as regulations and applies them, as is, to communities. We had the opportunity, when we went across the country and met with First Nations and First Nation organizations, to meet with the provinces as well. For instance, in Ontario, which has the most stringent regulations, they told us that their regulations would not work in communities. It is not because of any cultural sensitivities; it is because communities across Canada are small communities. The average is about 500 people. The regulations they would have for cities like Toronto, Ottawa and London would not work well in small communities. We knew we had to adapt those regulations. That adaptation is the big difference. We could start with a blank page or we could look at what exists in the province and, based on that, make adaptations for the needs of communities.
When we were out there, we asked as well, if this does not work, what would they recommend? The other possibility was to look at a national approach. However, it did not come out at the engagement sessions. The leadership we met with and the technicians, because of the different situations with water across the country, which are different from British Columbia to New Brunswick and Nova Scotia, said we need a regional approach. We need to look at this issue by province or region. That was the decision.
Senator Dyck: Thank you for that answer. I am still a little uncertain with respect to who has the authority, because a number of First Nations organizations believe that the federal government should not impose legislation and that they, through the band councils, have authority over construction, maintenance and so on of water systems on their reserves.
There may be an issue with respect to whether the federal government is infringing upon Aboriginal self-government — not the modern self-government, but the inherent right to self-government, which goes back to the rights in section 35 of the Constitution that were mentioned previously.
I still believe, from what I have heard, that there is a conflict with what you are saying, namely, that it is acceptable. I have heard from First Nations organizations that they feel as though their rights are being infringed upon.
Ms. Cram: Certainly, we have heard that. I mentioned that there are First Nations that are concerned. A number of First Nations expressed a variety of concerns. One is infringement of Aboriginal and treaty rights.
Senator Patterson: This question is a follow-up to my earlier question on the non-derogation clause and why you proceeded by regulation. This question is nitpicking, but I am curious about it.
There is a non-derogation clause relating to regulations and regulatory power in the First Nations Commercial and Industrial Development Act. I see Mr. Salembier is familiar with that act. What has my attention is that the provision in that act uses different words than the clause before us in Bill S-11. The First Nations Commercial and Industrial Development Act talks about a non-derogation clause "limiting the extent to which the regulations may abrogate or derogate from'' Aboriginal rights, whereas in Bill S-11, the clause talks about "the extent to which the regulations may abrogate or derogate.''
One provision seems to be more permissive and one suggests defining the extent to which Aboriginal rights can be limited.
Was the first clause, on experience, found to have been inadequate or in need of improvement? Can you explain that difference, please?
Mr. Salembier: Yes; if you compare the French version of the two clauses in those bills, you will find that they are identical. In the clause in this bill, I will admit frankly an error was made in one of the late stages of drafting the bill and the word "limiting'' was, by accident, dropped out.
It was never the intention that this clause differ at all from the clause in the First Nations Commercial and Industrial Development Act. As I said, the French version is identical to that act and includes the word "limiter.''
Frankly, it was simply an error. There was never an intention that this wording was to mean anything different, and the intention was always that the clause was intended to permit something to go in the regulations that would limit the extent that the regulations abrogate or derogate, not that the clause would expand the ability of the regulations in that respect at all.
Senator Patterson: Is this something that we should recommend fixing?
Mr. Salembier: It is certainly open to this committee.
Senator Patterson: I am not asking you, but the department would be open to accepting a recommendation of that kind, given what you have said?
Ms. Cram: Yes.
Mr. Salembier: Yes.
The Chair: Are you okay, Senator Patterson?
Senator Patterson: Yes, and I think Senator Dyck covered the other question I had on the provincial laws.
Can you describe generally the reception you are receiving in the regions of Canada on this bill? I understand a summary report was prepared by the Institute on Governance on the engagement sessions that were held that you described. According to that report, there was strong criticism from the vast majority of participants in Alberta, Quebec, Nova Scotia, and Ontario, and even some refusal to engage on the issues presented by federal officials.
You talked tonight about an endorsement from an Atlantic group, which I presume might have included Nova Scotia, so maybe the concern about the legislation around engagement has diminished. I met with the chiefs from Ontario and found strong opinions against this legislation on jurisdictional grounds.
Where are we now in terms of these regions: Alberta, Quebec, Ontario, and Nova Scotia? Are you still recommending that we go ahead despite these concerns from big areas of the country, such as Quebec and Ontario? Can you give us an update on those concerns please?
Mr. Carisse: Yes; to go back to the engagement sessions, there were some positive ones. We heard good information from the leadership and the technicians. However, there were others, let us say Alberta, where they had issues with the engagement session itself and the amount of consultation, et cetera. Consultation is a loaded word and it is difficult to define at this point. We have done the utmost we could, up to four years now, of engaging.
Where we stand now in the Atlantic, we had two sessions during those engagement sessions, one for the Nova Scotia chiefs only and another one in Moncton, where we had representatives from the chiefs from New Brunswick, Newfoundland and Labrador, and Prince Edward Island.
Working with the Atlantic Policy Congress, APC, they have passed a resolution to look at where to go with legislation in working with us, and that group includes the Nova Scotia chiefs. They are within that sphere.
In Quebec, the AFNQL also is willing to go forward and work with us. They passed a resolution. It is not necessarily full endorsement of the legislation — I do not want to mislead you — but they believe legislation and regulations are needed and the resolution is on how we can move forward to work with the regulations and if there are issues they have with the legislation.
We presented in November both to Treaty 6 in Alberta and then a presentation to the Association of Treaty Chiefs, so all three treaty areas were there. No one around that table, those chiefs, said they did not want legislation or regulations. They are all on board. However, they had some issues with the legislation itself and I am sure you will hear from the witnesses about some of those issues.
Everyone is committed — at least those chiefs — to ensure that they have clean, safe drinking water in their communities and they acknowledge that having regulations will help make that commitment happen.
Senator Banks: I do not think we would be able to find any representative of any First Nations, big or small, who disagrees with the concept that we need to have legislation. We need to have regulation — enforceable regulation in that legislation. I think no one disagrees with that. I do not disagree with that.
However, I think you will find chair, from witnesses that you will hear, that while there is endorsement of that concept, there is no endorsement yet that I have ever been able to find of this legislation as it exists before us.
One of the reasons is that, as Ms. Cram mentioned, the results of the assessment will be available this spring. I think you said that.
Ms. Cram: Yes, I did.
Senator Banks: Here is the legislation. We are going ready, fire, aim and that is not the right order of things, in my view.
I will ask a quick question or two. I assume that you have all read the expert panel's report. The expert panel's report did not say much about consultation. The report said the issue required legislation, regulations with teeth, and required that the legislation be developed not in consultation with the First Nations but with the participation — quite a different matter — of the First Nations and it should be based on First Nations concepts of First Nations law. Am I recalling that report correctly?
Ms. Cram: That was one of the options that the panel recommended. There were three options they recommended. What you have described was an option they referred to as customary law.
Senator Banks: What were the other two options?
Ms. Cram: One was federal legislation that was nationwide, and the other one was the approach that we are following here; a federal framework but with provincial enabling of regulations.
Senator Banks: I suppose I had a different impression of the extent to which the expert panels wanted to ensure the involvement in the process of First Nations in the proprietary sense. I had better go back and read the panel report again.
I have one final comment, chair. Senator Patterson has referred to the non-derogation clause. I suggest that clause 5(1)(r) on page 6 is not a non-derogation clause but a derogation clause. I believe Mr. Salembier will agree that if we took randomly 25 different sets of federal statutes that contain a form of non-derogation clause, we could find 25 different versions of a non-derogation clause because the wording has never been consistent before, or anything remotely like this one. It usually began with language along if lines of "Nothing in this legislation shall'' and then went on and became fuzzier and fuzzier after that as time went on.
This clause — and I am asking Mr. Salembier if he agrees with this point — contemplates and acknowledges that there will be derogation from the rights given under section 35.
Mr. Salembier: Technically, it is not a non-derogation clause because it is in a list of enabling powers. It confirms that the regulation itself can include such a clause.
I anticipate that if the regulations were to include a clause, it would look like one of five or six different models out there over about 19 pieces of federal legislation, so I assume it would look like one of those clauses when it is in the regulation.
Senator Banks: At the least, chair, I hope we will do what Senator Patterson suggested, which is translate the French into English so that the word "limiting'' is there.
The Chair: I think the witnesses have agreed that this change is a possibility, and we will deal with that change, I am sure.
Senator Dallaire: When you were in the process of bringing in this legislation, did you indicate to the different regional groups — or whichever groups, depending on how the meetings were structured — that this legislation would give them a higher guarantee that funding would be made available to implement the infrastructure and the operations and maintenance of the water systems that they need to meet the standards?
Ms. Cram: No.
Senator Dallaire: Good; therefore, that goes against what we said earlier. This legislation has nothing to do with a guarantee of funding. This legislation is one of the tools that hopefully the minister will consider when giving his cash line on the various priorities he has in putting funds into the safe water side.
How many signed documents do you have already from the provincial governments that they are prepared to implement clause 5, which is the enforcement of regulations? Do you have agreements that they are prepared to expend the funds and also to become engaged in doing that regulatory work and policing?
Mr. Carisse: We had exploratory discussions with the provinces to see if there was any openness to do that work, or only to play a role in regulating water on reserve, which could be limited to providing training, for instance. We will know the role of the provinces as we roll out the regulations, province by province.
We mentioned to chiefs and to leadership that there are different possibilities for providing the enforcement and compliance. We can have a federal body provide it, a First Nation aggregation provide it, or a mixture. The legislation is enabling and it gives us that opportunity, once we go into each province. We want to provide it in partnership with First Nations and with the organizations there; to decide the best solution for enforcement in each province.
Senator Dallaire: The trigger word that you are hanging your hat on is "may.'' If they do not want to play along, then do you have the capacity to do that job?
Mr. Carisse: To tell you the truth, there are some communities that will be opposed to having the province come into their communities. We went to the Northwest Territories. There are only two communities there on reserve: Salt River and K'atlodeeche. The Government of the Northwest Territories is already playing a role there now. Maybe those communities would not have a big problem in having the territorial government there.
Be that as it may, when we prepare the regulations, we will see who is best suited to provide enforcement. If it is not the province, we are left with two options: the federal government or a First Nation aggregation. In talking with the Atlantic Policy Congress, they are contemplating in their proposal to see a First Nation body play a certain role in the Atlantic on what that can mean.
The Chair: I have one quick question. You say you will consult with the First Nations on regulations and their development, which I believe. The provinces and territories, however, are at various stages of development.
Will you consult the affected First Nations each time a province or a territory introduces or amends their regulations with regard to that development? How will that work?
Mr. Carisse: If we had straight incorporation by reference, it would be different. If the province changes their regulations, it would happen automatically. However, that is not what we are contemplating. We will still be looking at provincial regulations. We will amend them or change them as much as we think is necessary, working in partnership with First Nations to make something that works for First Nations.
If the province changes the regulations, it will still be up to the government, and working with the First Nations, to decide whether we should mimic those changes in their regulations into the federal regulations that we will go forward with.
The Chair: On behalf of the committee, I thank all of you from your various departments. Thank you for the excellent presentation, Ms. Cram, and for the straightforward, candid responses to the questions. I look forward to hearing future witnesses on this bill.
We will work at this study fairly aggressively, colleagues. The library will supply you with the information you need. If you need any help, let us know, because we want to make this thing work sooner than later.
If there is no other business, the meeting is adjourned.
(The committee adjourned.)