Story by Brent Scout (Calgary Bureau)Senate, Parliament - Ottawa
– The Senate Standing Committee on Aboriginal Peoples held another hearing on May 29, 2012 to consider Bill S-8, an Act respecting the safety of drinking water on First Nation lands. Blood Tribe Chief – and Treaty 7 Grand Chief - Charles Weaselhead appeared as a witness to voice conditional support to the bill.
In May 2010, the federal government introduced Bill S-11, the proposed First Nations Safe Drinking Water Act. The bill faced opposition due to many outstanding issues, including: incorporation by reference; lack of consultations, lack of an inclusive regulatory process; lack of a non-derogation clause, capacity and resources.
First Nations drinking water has had a history of infamy in Canada. In comparison to drinking water off reserve, the quality of on-reserve water is largely unacceptable. Chief Weaselhead told the Senators that after decades of neglecting critical issues, “it is promising to see a federal government finally taking real steps to address this national embarrassment.”
“We are cautiously optimistic that Canada says that it is taking concrete action to protect drinking water on Indian lands through its re-introduction of the Safe Drinking Water Act for First Nations – and especially pleased that it has made critical amendments to protect our constitutionally protected rights. We are all born of Water. We are all treaty people – and as First Nations Indians, we have high expectations and great hope for collaboration in the true spirit and intent of our treaties and inherent rights,” said Chief Charles.
To date, criticism has been focused on Bill S-8's potential infringement upon First Nations’ constitutional and treaty rights, the inadequate consultation, and the proposed bill’s failure to incorporate the recommendations that arose from hearings on the previous version of the bill (S-11).
In particular, senators heard that Bill S-8 is flawed because there is no guarantee First Nations communities can meet the provision in the bill due to a lack of adequate resources from the federal government, and First Nations communities do not have the capacity or necessary resources to efficiently and effectively manage water systems. Additionally, witnesses have expressed that the language of the bill relegates First Nations laws to a secondary position by giving authority to all provincial water laws.
Senators are asking about the consultation process and want to know how many First Nations were consulted on Bill S-8. Previous witnesses remarked on the unclear definition of consultation when the federal government uses “consultation” to achieve its ends while First Nations do not feel consultation was meaningful or sufficient. Canada says the definition of consultation is too broad. Meanwhile, Alberta Chiefs have expressed dissatisfaction with the expert panel sessions (two days) and the one day "engagement session” that occurred under the former INAC minister, Chuck Strahl.
Since then, current Minister John Duncan seemed to recognize that more was needed and signaled a keen willingness to work with Alberta First Nations on their issues with the legislation. At the Chief’s request, and with Canada's agreement, Alberta Chiefs engaged in about 2 years' worth of "without prejudice" negotiations – as opposed to “true consultation.” The result was that about 80% of the core concerns of Alberta First Nations were addressed by way of amendments to the legislation, including but not limited to:
• A non-derogation clause
• Changes to narrow the scope of the regulations to drinking water and wastewater standards.
• Clarification that those third party systems on reserves would not be deemed to be the responsibility of First Nations.
• A commitment to work with First Nations on regulatory development.
• A delegation of authority to First Nations to set out own rates for water services.
Chief Weaselhead told the Senate, “As a matter of national priority, this enabling legislation is a result of a collaborative approach - consistent with the true spirit and intent of our treaty and inherent rights. It is time the Crown follows through on its commitment to move forward, to begin establishing the relationships critical to rebuilding our nations. Not just reforming the status quo, but engaging in true transformational change in public policy and the way governments do business with us – as committed by this Minister – the Honourable John Duncan and with Prime Stephen Minister Harper at the recent Crown-First Nations Gathering. I can’t speak for other First Nations but we must continue to create a process based on the rights and reconciliation agenda.”
While this legislation purports to create new regulations in collaboration with First Nations, the Act does not specify how First Nations will be equipped with the facilities, skills and resources to meet those regulations. First Nations need infrastructure, training and support to meet the requirements of the new regulations.
Weaselhead says the new law is not perfect, but an important starting point that promises to lead to other measures that are necessary to ensure the safety of First Nations drinking water. “The success of the legislation and, ultimately, the safety of First Nation drinking water will require that the collaborative approach to the development of the legislation must carry over into the development of the regulatory regime under the legislation and, most critically, to addressing the decades long chronic underfunding for First Nation drinking water systems.”
“It is my hope that this new Cabinet will consult and continue to negotiate in good faith – through meaningful consultations on resource development, water management and allocation, regulations based on the duty to consult and more importantly, rooted in the spirit and intent of our Treaty and Inherent Aboriginal Rights.”
Chief Charles adds that it is a sacred trust, a work in progress. “The Act alone cannot and will not ensure the safety of First Nations drinking water. Indeed, without other accompanying key measures the Act may have a detrimental effect on First Nations by imposing standards that First Nations clearly do not have the financial resources to satisfy.
In addition to the changes, the Minister also provided a letter to the Alberta Chiefs committing his department to working with Alberta First Nations on joint and collaborative development of the regulations. However, the support of the Alberta Chiefs is not unconditional. “If the regulations are not developed carefully and thoughtfully they will not work for First Nations and all of these efforts to date will be for nothing.”
Secondly, the National Engineering Assessment (NEA) identified that only three First Nation systems in Alberta are operating safely with certainty. Two of those three are operated under agreements with adjacent municipalities. Meanwhile, about a dozen systems in Alberta pose significant risks to human health. The NEA identified that $160 million is required to enable First Nation drinking water systems to meet the same standards enjoyed by non-Native Albertans. “I would submit that we are willing to be patient and to permit the government time to address this significant and persistent funding deficit. But our patience is not limitless in this regard. Without these resources, nothing will change. Therefore, in addition to the Act, the Government of Canada must also make a firm commitment towards infrastructure, monitoring and capacity. Alberta First Nations have been clear – should these necessary conditions not be met – not only will our support for the legislation evaporate, we will pull out all the stops to oppose the legislation, says Chief Weaselhead.
“However, based on our experience working with the Minister and his senior staff, we are hopeful that the collaborative approach to the legislation will carry over into regulatory development and addressing the resources badly needed for First Nation water systems.”