This is a place to share issues, useful and helpful information regarding healthy communities - what are some of the community programs that are helping our people address these issues, both on-reserve and in the towns and cities? Traditional and Contemporary solutions?

UN Resolution States Clean Water and Sanitation a Human Right: AFN National Chief Calls for Action to Advance Resolution in Canada

OTTAWA, July 29, 2010

The Assembly of First Nations welcomes the United Nations General Assembly resolution declaring clean water and sanitation to be a human right. More than 124 Nations voted yesterday for the resolution brought forward by the country of Bolivia. 884 million people around the world still suffer from a lack of access to drinking water.

"This is welcome news for First Nations people and communities who are struggling to access safe drinking water and sanitation," said National Chief Shawn A-in-chut Atleo. "This resolution establishes new international standards and, in affirming that clean water and sanitation are a basic human right, compels Canada to work with First Nations to ensure our people enjoy the same quality of water and sanitation as the rest of Canada."

As of June 2010, 114 First Nations communities across the country were under Drinking Water Advisories and 49 First Nations water systems were classified as "high risk". Some of these communities have been under a Drinking Water Advisory for 10 years or longer.

"The situation facing First Nations would not be tolerated in any other community or city in Canada," National Chief Atleo stated. "It is shameful that these conditions are allowed to fester in a country as rich as Canada. This is about nothing less than the health and safety of First Nations children. It is time to act to address longstanding inequity in infrastructure and training to enhance and support safe drinking water systems. The current approach of Canada to focus on regulation will not address these inequities and this is why we are calling for a joint effort to address underlying problems as the real solution."

Canada was one of 41 nations who abstained from the vote on this resolution. The Assembly of First Nations calls on Canada, as a member of the United Nations, to respect the resolution and engage in real action with First Nations to make sure efforts and resources are in place to honour the right to safe drinking water and sanitation. A resolution passed at the AFN's recent Annual General Assembly in Winnipeg, Manitoba called for advocacy and action to affirm First Nations rights and interests with respect to First Nations water.

AFN Regional Chief for Nova Scotia-Newfoundland Rick Simon stated: "Canada has committed to endorsing the United Nations Declaration on the Rights of Indigenous People and the UN resolution passed yesterday is consistent with principles in the Declaration that states Indigenous peoples have an equal right to the enjoyment of the highest attainable standard of physical and mental health. The AFN has put forward many plans and initiatives on this issue and we look forward to working with Canada to honour and implement this resolution."

The United Nations resolution calls on "States and international organizations to provide financial resources, build capacity and transfer technology, particularly to developing countries, in scaling up efforts to provide safe, clean, accessible and affordable drinking water and sanitation for all."

The Assembly of First Nations is the national organization representing First Nations citizens in Canada.

Leadership of Constance Lake First Nation are outraged following what they call a very “unacceptable move” by Indian and Northern Affairs Canada (INAC). For the last three months, the community has been without a water source as membership relies on bottled water. However, the Northern First Nation has recently learned that the amount of water being supplied is being reduced tremendously.

As of November 15th, INAC has reduced the amount of bottled water supplied from six litres per person, per day, to 1.5 litres. Chief Arthur Moore of Constance Lake First Nation says; “I am absolutely outraged with this decision. Access to a safe and useable water supply is the right of every person living in this country. Each province and territory has legislation to provide clean, safe and reliable drinking water to its citizens. Why should it be different for my community?”

A letter from Health Canada addressed to the Constance Lake First Nation dated October 20, 2010, recommended that the following water supply guidelines be followed in the community:

· Adult- 1.5 L per day for drinking water purposes

· Child- 1.0 L per day for drinking water purposes

· Additional water need for personal hygiene- 4.5 L per day

Chief Moore says; “The recent reduction, doesn’t even follow the health guidelines provided to my community just last month, with additional water needed for personal hygiene. In general, doctors recommend a healthy adult consume 2.2 litres of water per day; that doesn’t include those that are active, have poor health conditions, and pregnant women. I continue to fear that the lack of clean water will lead to despair and ill health for the people of Constance Lake First Nation.”

In late July, Constance Lake First Nation declared a state of emergency as 900 residents in the Northern community had been without water for more than a week. A thick layer of algae formed over the lake that was the main water supply for the community. To date, the First Nation remains under a boil water advisory.

The community is also fearful that getting bottled water into the community is going to soon become a serious issue as the recent water supplier from Cochrane, Ontario, has terminated their contract to transport the water.

Constance Lake First Nation has spent more than 56-thousand dollars of community funding on bottled water for membership that INAC has yet to reimburse.

-30-

Note to Editor:

· Constance Lake First Nation is 32 kilometres west of Hearst, Ontario.

It is a sad fact that, in Canada, as of October 31st, 2010, there were 116 First Nations communities under a Drinking Water Advisory. In fact, since there are 614 First Nations communities which live on 907 reserves, the reality is even more dismal in that there are 229 Drinking Water Advisories in place, in total, in First Nations communities. Nearly 1 in 3 reserves is under a Drinking Water Advisory! Also, when a First Nations community has difficulty with its drinking water the problem is not usually resolved as quickly as it is in urban areas. In fact, 90% of Drinking Water Advisories in First Nations communities are in place longer than a year, 50% are in place longer than 3 years, and the longest Drinking Water Advisory has been in place for 15 years.

The Safe Drinking Water Foundation (SDWF) has helped First Nations communities such as Yellow Quill (which was under a Boil Water Advisory for nine years), George Gordon First Nation and Saddle Lake Cree Nation with their drinking water challenges. The SDWF succeeded in making the water in these communities safe to drink thanks to the implementation of Integrated Biological Reverse Osmosis Membrane (IBROM) treatment systems.

Please help the SDWF’s Advanced Aboriginal Water Treatment Team (AAWTT) to visit rural and First Nations communities and help them with their specific water treatment challenges. The AAWTT is composed of highly trained, volunteer First Nations water treatment plant operators who want to help other First Nations and rural communities with their water treatment challenges. If you would like to help the AAWTT to perform the vital work they do, give us a call at (306) 934-0389, e-mail info@safewater.org or visit our website (www.safewater.org) and donate today! We are a registered Canadian charity and issue receipts for income tax purposes for all donations of $10 or more, there are only 2 days left in tax year 2010, donate now!

On behalf of all of our staff, board members and volunteers I would like to wish you and your loved ones Happy Holidays and a Joyous New Year.

"Water is sacred to Indigenous Peoples, necessary for all life and a key feature of our relationship with the land and resources upon the land. Indigenous Peoples have a sacred relationship with water and our rights to water are included in our Aboriginal Title, Rights, and Treaty Rights. Without water all life would cease to exist and our obligation to act to protect water resources is very high. Our obligations to protect water have been hampered by the refusal of the Canadian governments to recognize our laws and jurisdiction. The UBCIC agrees that it is necessary to act to ensure safe drinking water for Indigenous communities; however, Bill S-11 as currently drafted will not accomplish this goal."

Executive SummaryThe Safe Drinking Water for First Nations Act (Bill S-11) has the stated aim of improving the safety of drinking water to First Nation communities. The UBCIC supports this laudable goal. However, the Act will not accomplish this goal as currently drafted.

The Act was written and passed without consultation, accommodation with Indigenous Peoples and is fundamentally flawed. The Act transfers liability for safe drinking water to First Nation communities, without addressing the underlying cause of problems which include environmental damage and degradation brought on by decades of land and resource development without regard to the integrity of the water supply, and a lack of infrastructure and resources in First Nation communities to ensure water quality and safety.

The lack of safe drinking water to First Nation communities is not caused by a lack of regulations. The lack of safe drinking water is caused by a lack of infrastructure, financial resources and technical expertise to ensure the safety of the water supply, and by resource and land development outside of reserve lands (such as industrial logging and mining in watersheds without regard to the ability of those watersheds to maintain a safe water supply) authorized without regard to the impact on the drinking water supply to First Nation communities.

Bill S-11 demonstrates a complete disregard for the constitutionally protected rights of Indigenous Peoples, and attempts to adopt in broad strokes provincial legislation to apply, in a piece meal fashion, to reserve lands and water supplies across the country. Without the necessary resourcing, Bill S-11 creates expectations and legal obligations on First Nation governments but does not provide the necessary financial, technical and jurisdictional support to ensure that First Nation people will actually get safe drinking water.

The only acceptable solution is to send Canada back to the drawing board to structure a solution to ensure the safety of drinking water for First Nation communities in a process that is driven by First Nation communities and respects our constitutionally protected Aboriginal Title, Rights and Treaty Rights. A workable solution must ensure adequate resources to First Nation communities to build the infrastructure and capacity to ensure safe drinking water, and include the ability to address and influence environmental and resource development outside of reserve lands which impact upon the safety of water supplies.http://www.scribd.com/doc/48535455/Safe ... king-Water- - -

Federal Bill S-11 fails to address the water crisis in First Nation communities

TORONTO, Feb. 10, 2011

On February 8, 2011, Ontario Regional Chief Angus Toulouse presented to the Senate Standing Committee on Aboriginal Peoples with respect to government Bill S-11, Safe Drinking Water Act for First Nations.

The Regional Chief was clear in his presentation to the Senate Committee that First Nations in Ontario strongly oppose the imposition of Bill S-11. "Our opposition to this Bill is a clear indication that we will not accept legislation that disrespects our constitutional and treaty rights and is unilaterally imposed on us," said Regional Chief Toulouse. "This is an issue of paramount concern to First Nation leadership, as far too many of our communities lack safe drinking water and the infrastructure necessary to deliver safe drinking water. These circumstances are not acceptable and this Bill does not address the situation and is not the way forward."

The Regional Chiefs' presentation detailed areas of concern to the First Nations in Ontario which have been continuously conveyed to governments. First Nations leaders in Ontario have passed numerous resolutions with respect to safe drinking water in an effort to articulate to government how this situation can most effectively be resolved. Regional Chief Toulouse opened his presentation by stating "First Nations are entitled to enjoy safe drinking water from the sacred water sources entrusted to us and to our care and stewardship by the Creator. This right cannot be separated from our right to manage and apply our laws and values to water management".

He went on to state that all three recommendations from the government-appointed Expert Panel on Safe Drinking Water for First Nations need to be fully explored in order for the Chiefs in Ontario to be able to make an informed decision on how to address the complex issue of the lack of safe drinking water in their communities. The Expert Panel made three recommendations that they felt were feasible. The federal government took the prescriptive approach of choosing their preferred option and have refused to consider any other options. "The federal government pre-determined this from the outset and then went through the motions of holding two, one day engagement sessions with First Nations in Ontario and then have the audacity to claim they have consulted us --- absolutely unacceptable," stated Regional Chief Toulouse.

The First Nations in Ontario disagree with the imposition of legislation that does not address the significant infrastructure and capacity needs that exist which are the impediment to First Nations being able to access safe, clean drinking water. "This Bill has been designed to take the heat off the federal government for this crisis but fails to address the real issues," said the Regional Chief.

The Regional Chief reminded the Committee about the United Nations Declaration on the Rights of Indigenous Peoples and the July 2010 United Nations resolution declaring the human right to "safe and clean drinking water and sanitation". This resolution received the support of 122 countries but Canada failed to support the resolution, choosing instead to abstain.

The Chiefs in Ontario, comprising the 133 First Nations in Ontario, is a political forum and secretariat for collective decision-making, action and advocacy.

For further information:Andre MorriseauChiefs of Ontario416-580-9320andre@coo.org- - -

Did you know that as of December 2010, there were 117 First Nations with drinking water advisories, representing nearly one-fifth of the reserves in Canada. Nearly 50 communities have "high-risk" water systems.

Turtle Island Native Network notes another poignant example of how the Indian Affairs bureaucracy's perspective clashes with what First Nations believe . . .

Here's an example of what Indian Affairs says regarding the proposed legislation. . ."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." That is what Senators were told February 2nd by Christine Cram, Assistant Deputy Minister, Education and Social Development Programs and Partnerships, Indian and Northern Affairs Canada.

However, the reality is that Indian Affairs claims one thing, and First Nations leaders offer their reality check . . .

"With all due respect, it looks to me to be more of the same paternalistic approaches contained in the Indian Act."Turtle Island Native Network notes the above quote from the AFN National Chief's presentation earlier this month . . .

"In my view, Bill S‐11, in its current form, is a step backwards. Can the Bill be fixed and is AFN prepared to assist in this regard? The Assembly of First Nations is fully willing to work with the Minister, in a manner consistent with our mandate to fix Bill S‐11 and deliver real results for our people. Safe drinking water is a paramount concern and one to which we bring our focused energy and attention to achieve resolution."

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.

"We are extremely concerned that the Bill as it stands lacks funding commitments and could open the door to water privatization in First Nation communities. The Bill also currently gives the Canadian government the power to force a community to allow a private, for-profit entity to build, operate and/or manage its water services."Council of Canadians raises concerns about Senate bill on First Nations water safety. March 1, 2011- - -

Ottawa - The Council of Canadians has raised several concerns with the Safe Drinking Water For First Nations Act (Bill S-11) in a submission to the Standing Senate Committee on Aboriginal Peoples.

With 117 communities under water advisories in December, the Council of Canadians strongly supports the creation of legislation that recognizes First Nation communities’ right to water and ensures safe drinking water for First Nation communities.

“Water is a human right, public trust and global commons,” says Council of Canadians national water campaigner Emma Lui, who prepared the submission. “We are extremely concerned that the Bill as it stands lacks funding commitments and could open the door to water privatization in First Nation communities. The Bill also currently gives the Canadian government the power to force a community to allow a private, for-profit entity to build, operate and/or manage its water services.”

The UN passed two resolutions last year recognizing the right to safe and clean drinking water and sanitation, with the second resolution making the right legally binding. The Council’s submission highlights that several clauses in Bill S-11 are inconsistent with the UN Declaration on the Rights of Indigenous People (DRIP), which Canada endorsed last November. In developing Bill S-11, many First Nation communities were not consulted and the bill does not require consultation in developing regulations on safe drinking water for First Nation communities.

The UN DRIP requires free, prior and informed consent to any decisions affecting indigenous lands and resources. Any bill or regulations involving safe drinking water in First Nation communities should be developed alongside First Nation communities and must include their concerns.

“It’s deeply troubling that several clauses affirm that the regulations made under Bill S-11 take precedence over aboriginal and treaty rights and First Nation laws or by-laws,” says Council of Canadians chairperson Maude Barlow.

Last December, the Council released a report entitled Public Water for Sale: How Canada Will Privatize Our Public Water Systems warning of the potential impacts of the Canada-EU Comprehensive Economic and Trade Agreement (CETA) on Canada’s water systems. The report noted that, “The private sector will have the ability to enter First Nations as owners and operators of water and wastewater facilities due to a lack of infrastructure, resources and training within First Nations.” CETA and Bill S-11 combined could prevent First Nations from building, owning and operating their own water and wastewater plants.

The Council of Canadians is urging that any legislation on safe drinking water for First Nations include funding commitments, the explicit recognition that First Nation communities have a right to build, own and operate their own water systems, clear responsibilities for governments and private companies and a clause on free, prior and informed consent on any decisions affecting water systems.

The Council of Canadians thanks the Standing Senate Committee on Aboriginal Peoples forproviding the opportunity to comment on the Safe Drinking Water for First Nations Act (Bill S-11 ).

The Council of Canadians, which was founded in 1985, is Canada’s largest member-basedadvocacy organization. We have tens of thousands of members and over 60 community-basedchapters across the country. The Council of Canadians focuses on water, climate and tradeissues from a social justice perspective. Maude Barlow, the National Chairperson of the Councilof Canadians, also served as Senior Advisor on Water to the 63rd President of the UnitedNations General Assembly (2008-2009).

With 117 communities under water advisories in December, we strongly support the creationof legislation that recognizes First Nation communities right to water and ensures safe drinkingwater for First Nation communities. The stated aim of the bill is to improve the safety ofdrinking water in First Nation communities. While we commend the stated aim, we haveseveral concerns regarding the bill, which will be outlined below.

First, Bill S-11 does notstipulate funding commitments and funding roles for the three government departmentsresponsible for water on First Nation reserves (Indian and Northern Affairs Canada, HealthCanada and Environment Canada). With the lack of funding commitments, trends towardprivatization in Canada will force some communities to privatize their water systems.

Finally, indeveloping Bill S-11 many First Nation communities were not consulted and the bill does notrequire consultation in developing regulations on safe drinking water for First Nationcommunities.

FundingWhile Bill S-11 creates a regulatory framework for water on First Nation reserves, it does notallocate financial responsibility to any of the government departments currently responsible forwater and wastewater on First Nation reserves. The failure to mandate funding roles andcommitments is a glaring gap in legislation aimed at ensuring safe drinking water on FirstNation reserves.

As highlighted by the Union of B.C. Indian Chiefs, “The lack of safe drinking water to First Nationcommunities is not caused by a lack of regulations. The lack of safe drinking water is cause by alack of infrastructure, financial resources and technical expertise to ensure the safety of thewater supply.”

The Expert Panel on Safe Drinking Water for First Nations stated that “adequate resources – forplants and piping, training and monitoring, and operations and maintenance – are more criticalto ensuring safe drinking water than is regulation alone.“ Although the federal governmentspends over $1 billion in infrastructure including on water and wastewater systems, the ExpertPanel pointed out that “the federal government has never provided enough funding to FirstNations to ensure that the quantity and quality of their water systems was comparable to thatof off-reserve communities.” More specifically, the Panel noted that for the five-year capitalplan covering 2002-07, “INAC officials acknowledge[d] that the federal government’s initialestimates of the capital needed to invest in First Nations water and wastewater systems turnedout to be one-third to one-half of what was actually needed.”

The Expert Panel’s report outlined components of “What a New Law Might Look Like” andhighlighted that, “Given resource concerns of First Nations, it would be useful, almost necessaryfor INAC’s funding role to be mandated in legislation.”

On July 28, 2010, the United Nations (UN) General Assembly unanimously passed a resolutionrecognizing the right to safe and clean drinking water and sanitation. On September 30, 2010,the UN Human Rights Council passed a second resolution recognizing the right to water andsanitation. The UN Independent Expert on human rights obligations related to access to safedrinking water and sanitation, Catarina de Albuquerque, noted the significance of the HRCresolution and said that "this means that for the UN, the right to water and sanitation iscontained in existing human rights treaties and is therefore legally binding.”

The UN General Assembly’s resolution “calls upon States and international organizations toprovide financial resources, capacity-building and technology transfer, through internationalassistance and cooperation, in particular to developing countries, in order to scale up efforts toprovide safe, clean, accessible and affordable drinking water and sanitation for all.”Indian and Northern Affairs Canada (INAC) is concluding a national assessment of First Nationwater and sanitation systems, which will be released in the spring. INAC claims that theassessment enables them “to develop an investment plan on water” including infrastructure,capacity, training, operation and maintenance requirements. As some have noted, it is puzzlingwhy this assessment is not included in the discussion of Bill S-11.

Considering that funding is a key barrier to upholding the right to water for First Nationcommunities, we recommend that any bill aimed at ensuring safe drinking water for FirstNations include clear funding roles and commitments.

Risk of Water Privatization in First Nation CommunitiesSubsection 4. (1)(c)(iii) states that “regulations may confer on any person or body the power,exercisable in specified circumstances and subject to specified conditions, to require a firstnation to enter into an agreement for the management of its drinking water system or wastewater system in cooperation with a third party.”

We are extremely concerned that this clause could open the door to water privatization in FirstNation communities. This subsection provides the Canadian government with the power toforce a First Nation community to allow a private, for-profit entity to build, operate and/ormanage its water and wastewater services. To be clear this clause alone does not guarantee theprivatization of water and wastewater services in First Nation communities. However, given thelack of funding commitments in Bill S-11, this clause facilitates water privatization on reserves.Given federal financing trends and the negotiation of a trade agreement between Canada andthe European Union, it is possible that the operationalization of this clause in the currenteconomic and political context will lead privatization in some First Nation communities.2010 Federal Budget

The 2010 Federal Budget stated that “the Government will undertake a comprehensive reviewof its current approach to financing First Nations infrastructure. To be undertaken inpartnership with First Nations representatives, the review will focus on ways to more effectivelysupport access by First Nations to alternative sources of financing, and approaches to improvethe life-cycle management of capital assets.” Some of the “alternative sources of financing”may include private, for-profit entities. Some First Nation communities may be forced to allowthe private sector to build, manage and/or operate their drinking water services because it istheir only source of funding.

P3 FundIn 2007, the Federal government began the Public Private Partnership (P3) Fund under theBuilding Canada Plan. The P3 Fund explicitly promotes privatization by offering massivesubsidies to P3 projects. The P3 Fund accepts applications for provincial, territorial, municipaland First Nation P3 projects. In the last round of applications, there were 12 proposals for FirstNations projects. Without explicit commitments for funding in Bill S-11, communities may beforced to enter into a P3 project even if they oppose treating water as a commodity becausethey lack financing to build, upgrade or maintain infrastructure for drinking water.

Canada-EU Comprehensive Economic and Trade AgreementCanada and the European Union (EU) are currently negotiating the Comprehensive Economicand Trade Agreement (CETA). Canada and the EU concluded their sixth round of negotiations inthe third week of January. CETA has been noted as the most far-reaching trade agreement todate. Drinking and sanitation services are being negotiated and if included, it would be the firsttime that drinking water services were included in a trade agreement. This is particularlyconcerning because the world’s two largest water multinationals, Suez and Veolia, areheadquartered in France. Water services in First Nation communities would also be open toEuropean corporations. Water privatization around the world, which has resulted in priceincreases, job losses and decreases in water quality, have violated peoples’ right to water.

Last December, the Council of Canadians released a report entitled Public Water for Sale: HowCanada Will Privatize Our Public Water Systems warning of the potential impacts of the CETAon water systems in Canada. The report noted that, “The private sector will have the ability toenter First Nations as owners and operators of water and wastewater facilities due to a lack ofinfrastructure, resources and training within First Nations. Private operation of public facilitiescan lead to higher costs of service and user fees downloaded to First Nations resulting in furtherinequality. An added problem is that set-asides for First Nations companies, an importantmeans for provincial-territorial governments to encourage economic development, may be lostto the CETA procurement chapter.” CETA and Bill S-11 combined could prevent First Nationsfrom building, owning and operating their own water and wastewater plants.

If Bill S-11 passes in its current form and without funding commitments, communities alreadylacking funding will have no alternative other than to turn to the private sector. People whocannot afford to pay for water services may be denied access to water thus violating theirhuman right to water.

Section 4(1) contains clauses that enable regulations to:(d) establish offences punishable on summary conviction for contraventions of the regulationsand set fines or terms of imprisonment or both for such offences;(g) establish a system of administrative monetary penalties;(h) confer on any person the power to verify compliance with the regulations, including thepower to seize and detain things found in the exercise of that power;(i) confer on any person the power to apply for a warrant to conduct a search of a place;It is concerning that a community may be fined for violating regulations if the reason for theviolation is lack of funding. We are also very concerned that these subsections could be used tofine, seize and detain things or search a place for non-payment of water services. It remainsunclear as to why these subsections have been included in a bill pertaining to safe drinkingwater for First Nation communities. We request clarification on whether or not regulationspenalizing community members for non-payment could be developed based on thesesubsections.

What is also troubling is that Bill S-11 could be interpreted as eliminating responsibility or liability ofthird party. Section 4.(1)(o) states that regulations may “establish defences and immunities for, anyperson or body exercising a power or performing a duty under the regulations.”

If a community resorts to privatizing their water system because they lack funding, somemembers may not be able to pay for water services. Cut-offs for non-payment have beencommon in privatization cases as well as ensuing heath problems, illnesses and even deaths.Section 4.(1)(o) may absolve the private entity from responsibility for health problems, illnessesand deaths due to lack of clean drinking water. Based on the UN resolutions passed last year,the right to water is legally binding. In 2006, the then-High Commissioner for Human Rights,Louise Arbour, released the Report on Indicators for Monitoring Compliance with InternationalHuman Rights Instruments and pointed to the State as primary duty bearers. However, the UNSpecial Representative of the Secretary-General on the Issue of Human Rights andTransnational Corporations and other Business Enterprises, John Ruggie, noted thatcorporations have a duty to respect human rights and to apply due diligence. In order to upholdthe human right to water, any bill ensuring safe clean drinking water must outline clearliabilities and responsibilities for governments and private companies.

Lack of ConsultationDespite INAC’s claim to have consulted with First Nations, the Chiefs of Ontario and the Union of B.C.Indians Chief have asserted that they were not consulted.

Bill S-11 also does not require consultation with First Nation communities in developing regulations. Infact, a couple of clauses affirm that the regulations made under Bill S-11 take precedence overaboriginal and treaty rights and First Nation laws or by-laws. Subsection 4. (1)(r) states that theregulations may “provide for the relationship between the regulations and aboriginal and treaty rightsreferred to in section 35 of the Constitution Act, 1982, including the extent to which the regulations mayabrogate or derogate from those aboriginal and treaty rights.” In Section 6. (1) Regulations made underthis Act prevail over any laws or by-laws made by a first nation to the extent of any conflict orinconsistency between them, unless those regulations provide otherwise.”

The UN Declaration on the Rights of Indigenous People, which Canada endorsed last November, requiresfree, prior and informed consent to any decisions affecting indigenous lands and resources. Article 32states:1. Indigenous peoples have the right to determine and develop priorities and strategies for thedevelopment or use of their lands or territories and other resources.2. States shall consult and cooperate in good faith with the indigenous peoples concerned through theirown representative institutions in order to obtain their free and informed consent prior to the approvalof any project affecting their lands or territories and other resources, particularly in connection with thedevelopment, utilization or exploitation of mineral, water or other resources.

The lack of stipulations for free, prior and informed consent in Bill S-11 is troubling. Any bill orregulations involving safe drinking water in First Nation communities should be developed alongsideFirst Nation communities and must include their concerns.

AFN National Chief Shawn A-in-chut Atleo stated: "World Water Day is an opportunity to make a national commitment to ensuring that First Nations families have safe and clean drinking water. For many First Nations families, it is a daily struggle to get access to clean and adequate supplies of potable water and basic sanitation."

The National Chief noted that the latest figures indicate there are 116 communities with Drinking Water Advisories, representing 18.4% of the First Nation communities in Canada. In addition, the number of high-risk drinking water systems has increased from 48 to 49 in the past year. As many as 62,955 First Nations citizens could be affected by these water problems, and this does not include communities that lack running water.

The National Chief noted that Bill S-11, the proposed federal legislation on First Nations drinking water currently before the Senate, will not, in its current form, address the fundamental problems.

"I was pleased to speak with the Standing Senate Committee on Aboriginal Peoples on two occasions about Bill S-11," the National Chief stated. "I was quite clear that there is a paramount interest in ensuring and protecting safe drinking water for all First Nations. First Nations are working to advance regulation and standards based on their own jurisdiction and laws. Through respectful engagement, a commitment to sustainable resources and clear recognition of our rights and responsibilities, there is a way forward. I have encouraged the Minister and the Senators to work with First Nations to address these issues head-on. We have serious concerns about a bill that provides no meaningful role for First Nations, that provides no resources and yet potentially transfers liability to First Nations. We must change the orientation of this Bill, put a clear focus on delivering safe drinking water and ensure respectful processes are established to end the vulnerability of First Nations.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) provides an important guide in this work. Rather than antiquated approaches of the past, we are now called upon to work in partnership and respect to achieve the standards set out in the UNDRIP.

Water scarcity is increasingly a pressing international concern. Some world leaders have called for a new UN treaty or protocol that would make access to water and sanitation a universal right. In 2010, Canada was one of 41 countries that abstained from voting on a UN resolution that declared "the right to safe and clean drinking water and sanitation is a human right that is essential to the full enjoyment of the right to life.

National Chief Atleo concluded that "The First Nations of Canada have inherent aboriginal and treaty rights across this country that is blessed with a richness of water. As world water supplies become increasingly threatened, Canada must be a leader in protecting water and advancing access to safe drinking water as a basic human right. This work must begin now and right here at home. It requires genuine partnership between Canada and First Nations to resolve these health and safety risks and to advance a new level of cooperation and respect to protect water as a sacred and essential life giving force for First Nations, for all of Canada and the broader global community."

The Assembly of First Nations is the national organization representing First Nations citizens in Canada.

For further information: Don Kelly, Assembly of First Nations A/Communications Director613-241-6789 ext. 334 or cell: 613-292-2787 or e-mail dkelly@afn.ca

"It goes without saying that our community looked favourably on this investment as it contributed to improving the quality of life of all residents in Kitigan Zibi." Gilbert W. Whiteduck, Chief of Kitigan Zibi- - -

Minister Duncan Celebrates the Completion of the Drinking Water and Wastewater Treatment Systems in the Anishinabeg First Nation of Kitigan Zibi

OTTAWA, ONTARIO

July 5, 2011)

The Honourable John Duncan, Minister of Aboriginal Affairs and Northern Development, today congratulated the community of Kitigan Zibi, Quebec, on the completion of improvements to its drinking water and wastewater treatment systems.

"Our Government is committed to supporting access to safe drinking water in First Nation communities," said Minister Duncan. "We are proud to be a part of this project to improve the Kitigan Zibi water distribution system which now allows for more homes and community buildings to be connected to a safe system that provides quality drinking water."

With the completion of these infrastructure improvements, close to 40 per cent of existing buildings are now connected to a safe drinking water system. This includes 195 homes and a dozen community buildings such as the band school, the medical clinic, the police station and the community hall. This initiative was made possible through an investment of $12 million under Canada's Economic Action Plan.

"This project addressed a number of concerns expressed by members of the community regarding access to a drinking water system that would cover the greater proportion of our territory," said Gilbert W. Whiteduck, Chief of Kitigan Zibi. "It goes without saying that our community looked favourably on this investment as it contributed to improving the quality of life of all residents in Kitigan Zibi."

By the end of 2013, the Government of Canada will have invested a total of $2.5 billion in water and wastewater infrastructure for First Nation communities since 2006. These investments have been made through the Capital Facilities and Maintenance Program, First Nations Water and Wastewater Action Plan http://www.ainc-inac.gc.ca/enr/wtr/infi ... ap-eng.aspand Canada's Economic Action Plan.

Pilot Project Marks Important Partnership to Improve on Reserve Water Quality in Ontario

Ottawa, Ontario (July 6, 2011) - The Governments of Canada and Ontario are pleased to announce the Canada-Ontario First Nations Pilot to Improve Drinking Water Quality, a new joint three-year initiative harnessing innovative and alternative drinking water systems to improve water quality in Ontario First Nation communities. The Ontario First Nations Technical Services Corporation (OFNTSC) is also supporting this initiative through the provision of technical support to First Nations and Tribal Councils.

"Together, we are taking an important step towards improving on-reserve water by looking at innovative solutions that address the needs of First Nation communities," said the Honourable John Duncan, Minister of Aboriginal Affairs and Northern Development. "This pilot project is a concrete example of our ongoing commitment to working with First Nations and other stakeholders to ensure that these communities have access to improved drinking water."

This initiative will support a select number of projects in Ontario First Nation communities, which may benefit from the use of innovative approaches in ensuring a high quality of drinking water for residents. The projects will pilot the use of innovative processes, technologies and strategies to determine if there are sustainable and economically viable options that can improve access to drinking water in these communities.

"Innovative approaches and technologies can play a key role in ensuring clean, safe drinking water," said John Wilkinson, Ontario Minister of the Environment. "We are committed to working with First Nations to protect their drinking water in ways that work for them".

The Government of Canada will provide a total of $5 million in funding. The Ontario government and the Ontario First Nations Technical Services Corporation will provide technical support and training.

The First Nation communities selected for participation in this pilot project will be responsible for commissioning appropriate design and technology solutions for their communities through a Request for Proposals (RFP) process.

"Innovative water technology combined with expert technical support will help First Nations deliver quality drinking water" said Bob Howsam, Executive Director, OFNTSC.

"Innovation in the delivery of safe drinking water to First Nations will improve the quality of life for residents in First Nations. The OFNTSC is pleased to support First Nations in their attainment of innovative water technology through the Canada-Ontario First Nations Pilot to Improve Drinking Water Quality."

The Canada-Ontario First Nations Pilot to Improve Drinking Water Quality is the result of a partnership between Aboriginal Affairs and Northern Development Canada (AANDC), the Province of Ontario and the Ontario First Nations Technical Services Corporation (OFNTSC). The initiative's goal is to demonstrate the benefits of innovative and alternative approaches to water treatment and distribution systems to improve drinking water quality in Ontario First Nation communities.

Many First Nation communities in the province face challenges in providing safe drinking water and are looking for solutions. This initiative will support collaborative demonstration projects in Ontario First Nations to help address this challenge. Each of these projects will showcase innovative and cost-effective approaches to protect drinking water and improve long-term water quality for First Nation communities. Ideally, these solutions will be easily replicated in other communities of a similar size.

AANDC will provide up to $5 million in funding for demonstration projects in selected Ontario First Nation communities. This funding will cover the full costs of capital infrastructure, operations and maintenance over the three year project period. The Ontario government and the Ontario First Nations Technical Services Corporation (OFNTSC) will provide technical support and training. The role of the OFNTSC will be to provide assistance to First Nations and their Tribal Councils as required during the application phase as well as technical advice during construction and operation.

First Nation communities selected for this initiative will lead the process of commissioning appropriate design and technology solutions for their communities through Request for Proposals processes. The Province of Ontario will provide technical support to assist the First Nation community in assessing and evaluating the most appropriate design approach for their community. Ontario will be making the Walkerton Clean Water Centre available to provide additional support for the project during the training and monitoring phases.

These collaborative demonstration projects will provide both short-term and long-term benefits for all participants, and help to develop and solidify working relationships between the province, federal government and First Nation communities. They will assist First Nations and governments in the identification of sustainable and economically viable options that can be implemented in communities that have not been able to benefit from traditional drinking water systems.

Minister Duncan Releases National Assessment of First Nations Water and Wastewater Systems Results

SASKATOON, SASKATCHEWAN

July 14, 2011

The Honourable John Duncan, Minister of Aboriginal Affairs and Northern Development, released today the results of the National Assessment of Water and Wastewater Systems in First Nation Communities, the most rigorous, comprehensive and independent evaluation of water and wastewater systems on reserve ever undertaken by a federal government.http://www.ainc-inac.gc.ca/enr/wtr/nawws/index-eng.aspThe National Assessment surveyed the water and wastewater systems of 97 per cent of First Nation communities in Canada. Site visits in the 571 participating First Nations began in September 2009 and concluded in November 2010. This first ever national and independent assessment provides Aboriginal Affairs and Northern Development Canada (AANDC) and First Nations with a comprehensive and detailed account of water and wastewater systems on reserves.

"Our government is strongly committed to the health and safety of all Canadians. We are the first government to ever commission a national and independent assessment of this scope," said Minister Duncan. "We have made important and strategic infrastructure investments to support First Nations in operating their water and wastewater systems."

"This report shows that more needs to be done, especially in areas like capacity and monitoring, and that is why our government will continue to work with First Nations and will bring in legislation to support the creation of enforceable standards. This government is committed to working with First Nations, as we have done for the last five years, to address this serious challenge," said Minister Duncan.

The Government of Canada will continue to work with First Nations by investing in infrastructure, monitoring and capacity. Work is underway to address 15 water systems this year. On infrastructure alone, the government plans to invest in an additional 57 water systems by 2015-2016.

In addition, the government will continue to invest in capacity building, which was highlighted in the report as a major challenge to maintaining effective water and wastewater systems. The government invests $10 million a year in the Circuit Rider training program to train and certify First Nation operators and managers. It is critical that operators and managers have the skills and knowledge to ensure safe, reliable and efficient operation.

Immediately following the release, AANDC will be working with First Nations, the provinces and territories, and other stakeholders to discuss the National Assessment results and to develop a strategy for future actions and investments.

Information on plans to address the findings and recommendations of the National Assessment and support to First Nations in providing residents access to safe, clean, and reliable drinking water can be found on the department's website. http://www.ainc-inac.gc.ca/enr/wtr/nawws/drp-eng.asp(Left to right: Whitecap Dakota First Nation Chief Darcy Bear, Minister Duncan and Water Treatment Plant Operator Debbie Roper tour the Whitecap First Nation Water Treatment Plant today in Saskatchewan.)- - -

Department's Response to the National Assessment of First Nations Water and Wastewater Systems

The National Assessment

The National Assessment is the most comprehensive and rigorous survey ever undertaken of First Nation water and wastewater systems by a federal government. From July 2009 to spring 2011, independent engineers inspected 4,000 on-reserve systems including 1,300 water and wastewater systems and more than 800 wells and 1,900 septic fields serving 571 First Nation communities.

Subsequently, using Aboriginal Affairs and Northern Development Canada's (AANDC) Risk Level Evaluation Guidelines, the independent contractor assigned a risk rating to each of the 807 water and 532 wastewater systems inspected.

Additionally, the contractor also provided cost estimates and overall recommendations to assist AANDC with its future financial planning and decision-making processes.

The National Assessment shows an increase in the number of high risk water systems compared to previous reporting. A water or wastewater systems risk rating is a measure of overall system management risk, not necessarily of water safety or quality.

The National Assessment results show the majority of risk is due to capacity issues, although infrastructure issues and lack of enforceable standards are also a factor.

The results highlight the need to work with First Nations to develop a detailed strategy to address these issues. The Government of Canada will work in partnership with First Nations to address training and capacity issues; make better use of new technologies for water and wastewater treatment and for remote monitoring of systems; and to develop and implement a regulatory regime for water and wastewater on reserve through legislation.

AANDC's response to the findings of the National Assessment will be further adapted as the department analyzes the results and engages with First Nations and other stakeholders.Key FindingsRisk Assessment

Water Systems:

Of the 807 water systems inspected, 39 per cent were classified as high overall risk, 34 per cent were labelled medium overall risk and 27 per cent were categorized as low overall risk.

Wastewater Systems:

For the 532 wastewater systems inspected, 14 per cent were evaluated as high overall risk, 51 per cent as medium overall risk, and 35 per cent as low overall risk.

It is important to note that a risk rating of a water or wastewater system is a measure of overall system management risk, not of water safety or quality. Operation and Maintenance (O&M), operator qualification, and record keeping account for 60 per cent of the risk measured. This underscores the vital importance of having trained and certified operators for reducing risk and helping to ensure safe drinking water in First Nations communities.Costs

The National Assessment also estimated AANDC's financial cost to meet its protocols for safe water and wastewater and the cost, over ten years, of ensuring that First Nation water and wastewater systems are able to grow with communities to meet their needs. The contractor's projected estimated servicing cost, including $1.2 billion to meet AANDC's current protocols, is $4.7 billion.

Of this, the contractor also estimated future servicing costs in excess of $60,000 per home for 55 per cent of the communities.

As this cost per home is high, the contractor also recognized that, at a certain point, the cost of providing a typical servicing solution may begin to exceed the benefits of that solution.

While increasing funding for capital projects may seem like the most obvious solution, design risks only account for 30 per cent of the risk identified in high risk systems.AANDC's Response to the National Assessment

AANDC's response to the National Assessment findings and recommendations builds on existing programs and initiatives to support First Nation communities in providing residents with the same quality of safe, reliable, and healthy drinking water as other Canadians.

The response identifies immediate activities and future opportunities for action in three key areas:

Infrastructure Investments: Improving technologies and partnerships to ensure the best use of infrastructure funding Enhanced capacity building and training Enforceable standards and protocols

Between 2006-2007 and 2012-2013, the Government of Canada will have spent approximately $2.5 billion to support First Nation communities improve water and wastewater systems through investments in infrastructure, developing enforceable standards and protocols and capacity building and training.

This includes approximately $1.25 billion in water and wastewater infrastructure funding AANDC transferred to First Nations and First Nation organizations, between April 1, 2006 and March 31, 2010. A total of 130 major water and wastewater projects that cost over $1.5 million were completed over this four year period. Almost 120,000 individuals living in these First Nation communities have benefitted from these investments.

Already this year investments in 15 water systems the National Assessment identified as having a high risk and high overall risk rating are planned or underway, and an additional 57 are planned over the following four years.

At this point in time, response activities will be implemented through existing budgets and regulatory measures.Key Activities by Priority Area

Infrastructure Investments: Improving technologies and partnerships to ensure the best use of infrastructure funding

On July 6, 2011, the Governments of Canada and Ontario announced the Canada-Ontario First Nations Pilot to Improve Drinking Water Quality, a new joint three-year initiative harnessing innovative and alternative drinking water systems to improve water quality in Ontario First Nation communities. If successful, these technologies may be applied to improve on-reserve water systems in First Nation communities across the country.http://www.ainc-inac.gc.ca/ai/mr/nr/m-a ... 15-eng.asp AANDC will work with willing First Nation partners on developing shared water services agreements with municipalities. A two-year project is underway with the Federation of Canadian Municipalities to provide tools and best practices to help First Nations and municipalities develop shared water services.

Given the need for the federal government to prioritize investments, we will work with partners to develop cost-effective and sustainable solutions for the provision of water and wastewater systems.

AANDC will work with First Nations to develop an initiative to bring existing wells up to standards. In particular, special attention is required to remediate wells serving community buildings such as schools, daycares and band offices.

Budget 2010 committed the federal government to review, in partnership with First Nations, the current approach to financing First Nations infrastructure, in order to establish a life-cycle approach to funding capital assets and place the financing system of on-reserve community infrastructure on better footing.

Enhanced Capacity Building and Training

AANDC will work with First Nation organizations to restructure the Circuit Rider Training Program (CRTP) in order to: improve program delivery consistency; clarify performance standards and provide direction on the frequency of visits to First Nations; and ensure that trainers have clear minimum qualifications.

AANDC is funding the Circuit Rider Trainer Professional Association (CRTPA) to host an annual conference to support professional development and share best practices.

Enforceable Standards and Protocols

Following the receipt of the National Assessment measures to strengthen water and wastewater inspection processes and to increase national consistency were immediately implemented.

Until there is legislation in place, current standards and protocols will be reviewed, clarified and updated in the short-term to bolster water and wastewater protection in First Nation communities.

Legislation will enable the Government of Canada to collaborate with First Nations and other stakeholders to develop a regulatory regime for on-reserve water and wastewater.

Next Steps:

This is an immediate response to the findings of the National Assessment and will be revised further as the department analyzes the results and engages with First Nations and other stakeholders. As this response plan indicates, given the need to prioritize investments, AANDC will work with First Nation partners to develop cost-effective and sustainable solutions. This work will be informed by the unprecedented reference tool the National Assessment provides. The Government of Canada is moving forward with water legislation.

AFN Responds to the National Assessment of First Nation Water and Wastewater System Report

MONCTON, NB, July 14, 2011

Following today's release of the National Assessment of First Nation Water and Water Systems report, Assembly of First Nations (AFN) National Chief Shawn A-in-chut Atleo repeated his call for federal government to work urgently with First Nations on a concrete action plan that will deliver safe drinking water and improved waste water systems to First Nation citizens.

"The report released today is shocking in that it reveals the quality of drinking water in First Nation communities is even worse than anticipated," said the National Chief. "More than half the water systems our people are using are risky systems. While First Nations have been calling attention to this matter for years, today's report should spark swift and urgent action to ensure the health and safety of our people. Other Canadians would not tolerate this situation in their communities and we must not tolerate it in First Nation communities."

The study was announced in 2009 but the report was only released today. The figures show that the number of high and moderate risk drinking water systems are higher than previously reported by Aboriginal and Northern Affairs Canada. The recent Auditor General's report stated that the safe drinking water problem has actually become worse in First Nation communities over her ten year term. She called for Canada to work with First Nations to address this in a timely manner.

The report indicates that 39% of the drinking water systems in First Nation communities are considered "high risk" and 34% are "moderate risk", which means 71% of the systems pose risk to First Nation citizens.

The National Chief stated: "We want to work with the federal government in partnership, based on standards brought forward in the United Nations Declaration on the Rights of Indigenous Peoples, to ensure that we address this as a priority issue. We have made healthy and safer communities one of our top priorities. We will need to move in a timely manner. Access to water and sanitation is a basic human right. First Nations must be fully engaged in a way that recognizes our rights and responsibilities to ensure the safety of our people."

The Assembly of First Nations is the national organization representing First Nations citizens in Canada.

For further information:

Don Kelly, A/Director of Communications, Assembly of First Nations613-292-2787 or dkelly@afn.ca

NATIONAL ASSESSMENT OF FIRST NATIONS WATER AND WASTEWATER SYSTEMSHIGHLIGHTS DRAMATIC HEALTH RISKS AND THE NEED FOR IMMEDIATE ACTION.

TORONTO — On June 14th, the Minister of Aboriginal Affairs and Northern Development (AANDC) released the results of the National Assessment of Water and Wastewater Systems in First Nation Communities.

Some of the key findings for First Nations in Ontario include:• Seventy two or 45.5% of the Water Treatment plants are at high risk• Sixty one or 38.6% of the Water Treatment plants are at medium risk• Twenty five or 15.0% of the Water Treatment plants are low risk

Despite what the AANDC states as a comprehensive and detailed account of water and wastewater systems on reserves, one must be cognisant that not all health and safety issues have been accounted for in our First Nation Communities since the visits were “walk through” in nature. Nevertheless, the report confirms the enormity of the need for infrastructure investment in First Nations communities across the country.

In the past, the federal government’s approach to addressing clean and waste water issues for First Nations’ communities through proposed legislation was the elaboration and enforcement of clean water and waste water standards in First Nation communities, thus delegating responsibility and liability to First Nations without addressing infrastructure and related capacity issues. This report confirms the need for action on infrastructure and capacity investment as a pre-requisite.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which Canada finally endorsed on November 12, 2010 at Article 21 states:

“1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security.

“2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. ...”

There was a special half day discussion about water at the 10th Session (May 2011) of the United Nations Permanent Forum on Indigenous Issues. The 10th session report includes the following:

“79. Indigenous peoples have a profound relationship with their environment. This includes their distinct rights to water. The Permanent Forum urges States to guarantee those rights, including the right to access to safe, clean, accessible and affordable water for personal, domestic and community use. ...”.“84. The Permanent Forum urges States to increase the provision of funding to indigenous peoples and communities for water and wastewater systems in order to improve the quality of drinking water and wastewater infrastructure, as well as address water pollution and degradation in indigenous communities.”

In her final report, Auditor General Sheila Fraser stated that “Over the past 10 years, my office has produced no fewer than 31 audit reports on aboriginal issues. Yet despite these reports, and despite some federal action in response to our recommendations over the years, too many First Nations people still lack what most other Canadians take for granted” (Auditor General Sheila Fraser, May 28, 2011 Toronto).

Regional Chief Angus Toulouse observed, “the federally commissioned report on First Nations water and waste water systems is a factual statement of the challenges that our people face each and every day. Basic human rights and human dignity are taken for granted by so many, while First Nations people suffer from indifference. It is also obvious that part of the solution is new and significant investment in First Nations infrastructure and capacity. First Nations leaders expect federal and provincial governments to act on these issues in accordance with human rights standards and their treaty responsibilities with respect to First Nations peoples.”

The Chiefs in Ontario, comprising the 133 First Nations in Ontario, is a political forum and secretariat for collective decision-making, action and advocacy.

The Walkerton Clean Water Centre (WCWC) and Bimose Tribal Council have established a training agreement that will support First Nations youth.

The WCWC recently signed a two-year Memorandum of Understanding (MOU) with the Bimose Tribal Council (Bimose) to collectively administer and deliver training to nine First Nation member communities.

The key partnership will collectively provide First Nation participants training in the drinking water sector that will enhance their development.

Approximately 40 participants are expected to benefit through this MOU.

"This agreement with Bimose allows for a flexible relationship where Bimose and the First Nations under its jurisdiction can access train-the-trainer services including the drinking water training they need. We hope it may be a model to allow the Centre to work with other tribal councils," explains Dr. Laurence F. (Larry) Moore, chief executive officer, WCWC.

The WCWC will provide participants training materials and associated water testing equipment.

Bimose will also have access to a mobile training unit, a self-contained drinking water training and technology demonstration unit.

This unit is equipped with leading-edge drinking water testing and demonstration equipment.

"Providing training for remote and First Nation communities is a key part of the Centre's mandate", said John Wilkinson, minister of environment. "I congratulate the Walkerton Clean Water Centre and the Bimose Tribal Council on their agreement as it will help ensure safe, reliable drinking water across communities in Ontario."

The trainers from Bimose will initially attend a train-the-trainer program at the WCWC and thereafter specific training courses will be delivered by the WCWC or our partners.

Quick facts

- The WCWC is an agency of the Government of Ontario, responsible for operator training, practical research and support for the development of new technologies and services.

- The WCWC has trained more than 28,000 course participants since its inception in 2004.

We are writing to voice our grave concerns with the results of the belated National Assessment of First Nations Water and Wastewater Systems (“the Assessment”), released on July 14, 2011, and to demand that Aboriginal Affairs and Northern Development Canada (AANDC) immediately take meaningful and effective action to remedy the extreme health and infrastructure concerns identified.

We also echo National Chief Atleo’s call for the federal government to work urgently with First Nations on a concrete action plan to deliver safe drinking water and wastewater systems to First Nation citizens, and we emphasize that this action plan must absolutely be fully funded.

The Assessment found that a shocking 73% of First Nations citizens on reserve currently experience drinking water systems that are a risk to their health (39% “high risk” and 34%” moderate risk”). We note that the incidence of “high risk” water systems is the greatest in British Columbia- a whopping 53%, or 154 out of 290 water systems. We are absolutely outraged and gravely concerned that Federal government quality of life standards are so low for Reserve communities that these alarming statistics were released without any accompanying emergency response plan to address these appalling conditions. If 73% of all Canadian citizens experienced drinking water systems that proved to be a risk to their health, there is absolutely no way that the government would stand idly by. This is a worsening crisis situation that features extremely detrimental health and safety risks and consequences for our community residents.

In order to ensure that First Nations, like all Canadians, have access to non-risk water and drinking water systems, the federal government must commit to providing funding for appropriate upgrades. The total cost identified in the Assessment to comply with currently applicable guidelines, protocols and legislation for water systems is $846 million, and for wastewater systems the total cost is an estimated $316 million. The Assessment notes that current Operations and Management budgets are often too low to retain operators, to provide ongoing component replacement, and to perform all of the monitoring and recording requirements. We firmly believe that AANDC has an undeniable fiduciary and moral obligation to carry out and fund the recommendations that its own department put forward in this Assessment.

We are aware that the federal government plans to re-introduce legislation on safe drinking water for First Nations (Bill S-11), and we wish to reiterate the enormous holes in the legislation. Even with amendments proposed in February 2011, Bill S-11 remained fundamentally flawed and will not improve the safety of drinking water in First Nation communities, as we explained in a letter to you on March 7th, 2011. The lack of safe drinking water to First Nation communities is not caused by a lack of regulations, but is caused by a lack of infrastructure, financial resources, and technical expertise, and by resource and land development authorized without regard to the impact on the drinking water supply to First Nations.

We remind you that the approach of Bill S-11 is not at all consistent with the recommendations made by the 2006 Expert Panel on Safe Drinking Water in First Nations Communities (“Expert Panel”), which clearly call for necessary resources to be made available in order to achieve safe drinking water. In fact, the Expert Panel concluded that setting standards and requirements is in some ways the least important aspect of water system safety, and that the really critical element is the capacity of facilities and operations to meet the standards, which depends on human and economic resources. In contrast to this conclusion, the federal government drafted Bill S-11 based on standards and requirements, as opposed to any allocation of appropriate resources. The findings of the recently released Assessment confirm the findings of the Expert Panel, and reveal the urgent need for adequate resources in order to ensure safe drinking water for First Nations communities. We draw your attention to Article 39 of the United Nations Declaration on the Rights of Indigenous Peoples, which provides that “Indigenous peoples have the right to have access to financial and technical assistance from States and through international cooperation, for the enjoyment of the rights contained in this Declaration.”

Rather than re-introducing Bill S-11, the federal government must abandon Bill S-11 in its current form, and engage in a meaningful, joint process with all First Nations to seek a properly resourced solution that will ensure safe drinking water for all First Nations communities. Consistent with the United Nations Declaration on the Rights of Indigenous Peoples, this process must be done with the free, prior and informed consent of all First Nations. As part of this solution, AANDC must work with First Nations and implement the recommendations identified in the Assessment. First Nations deserve the same quality drinking water and wastewater systems that other Canadians enjoy, without being considered to be at any level of risk. Given the urgency of this issue, we expect a timely response.