June 18, 2012

Honourable senators, I would like to take this opportunity in speaking to the proposed amendment to the non-derogation clause at third reading of Bill S-8 to thank Honourable Senator Dyck for her remarks on the bill.  We have heard many speeches and testimony and received correspondence on many important elements, none more so than the complex issue surrounding Aboriginal rights and the inclusion of non-derogation clauses in legislation.

Speaking of Aboriginal rights and respect for Aboriginal rights, Senator Dyck closes her remarks in speaking to her proposed amendment on this bill by referring to what she said were the unacknowledged rights of the Algonquin people on whose unceded land this chamber sits.

In fact, I must note that Canada and the Province of Ontario are, as we speak, negotiating towards a modern day treaty with the Algonquins of Ontario and are now working on an agreement in principle.

However, turning to Bill S-8 and the amendment proposed by Senator Dyck that is before this chamber there can be no more important legislation than dealing with the health and safety of our citizens.  That is a responsibility which we must take very seriously.

Today, our citizens who reside in First Nations communities do not have the same protections for their health, safety and well-being as do all others.  This is be cause on reserves, there is no legislation.  There is a vacuum governing the health and safety of drinking water and the effective disposal of waste water

This bill enables First Nations and the Government of Canada to move forward to rectify this untenable situation.  Therefore, in response to the proposed motion, I have three key points to make.  I hope that we can pass this much-needed legislation and allow it to be considered in the other place.

First, amending the non-derogation clause to remove the qualifier “except to the extent necessary to ensure the safety of drinking water on First Nation lands,” would potentially prevent the government and First Nations from protecting sources of drinking water on First Nation lands, thus negating one of the main purposes of the bill before the honourable senators today.

Second, the final phrase of the non-derogation clause is narrow but important since it helps to portect the essential right of all First Nations children, women and men to have access to safe, reliable and clean drinking water like every other citizen of this country.

Clause three is not designed to protect government or to allow government to run roughshod over Aboriginal and treaty rights.  It is solely to ensure that members of First Nations communities have the same protection as all other Canadian Citizens.

Third, the non-derogation clause included in Bill S-8 is the product of a compromise between First Nations and the government.  It is a direct result of the government collaborating with First Nations to come up with a solution to a very contentious issue.  It embodies the balance which must be struck by First Nations between Aboriginal and treaty rights and the larger community’s need to set rules to help guarantee that everyone has access to safe, reliable and clean drinking water.

I would like to elaborate on these points.

First, Senator Dyck said:

…no one in their right mind, Aboriginal or otherwise, would argue that they have a constitutional right to harm their own safety by dumping garbage or waste water so close to their drinking water source that it makes their drinking water unsafe to drink.  No one would be ignorant enough to knowingly and willfully endanger the health of their family, children or the community as a whole.

Of course, no one would knowingly endanger their family or community, but the fact is that after the tragedies of Walkerton and North Battleford, we know that actions taken by individuals can have unintended negative consequences.  A regulatory framework is the ideal mechanism to ensure that individuals are aware of potentially dangerous behaviour and can be restricted from undertaking those actions.

In Walkerton, seven people died and more than 2,500 got sick.  In North Battleford, approximately 7,100 became sick and both of these tragedies were the direct result of contaminated source water.  In Walkerton, cows were allowed to graze by the water source.  In North Battleford, there was a failure to properly treat the drinking water.  It is possible that, in a First Nation community, an individual would claim an Aboriginal right to use his or her parcel of land as they please.  This right could be pitted against the community’s right to safe water.  Bill S-8 and the subsequent regulations would set up parameters so that the health and safety of the community’s citizens are paramount.

There is a risk that the inclusion of a standard non-derogation clause in Bill S-8 could prevent the regulations from restricting the individual’s exercise of his or her Aboriginal or treaty rights, even if that exercise was in direct conflict with the health and safety of the community.

By including the final phrase in the non-derogation clause, the government, with the help of First Nations, will be able to ensure that regulations are crafted in a manner that deals with Aboriginal and treaty rights fairly and that strikes a balance between rights and safety.

Second, Senator Dyck mentioned that:

There are clauses that could override the existing Aboriginal and treaty rights of Indian Act First Nations as well as any self-governing or other First Nations who choose to opt in.

I would first like to address the point that Bill S-8 would infringe on the rights of self-governing nations.

The regulations stemming from the bill would only be paramount to existing laws and bylaws should those self-governing First Nations choose to opt-in to the bill.  It is only sensible that a community that chooses to adopt a regulatory regime would then be subject to that regime.

Regarding Indian Act First Nations, contrary to what was said, the scope of the legislation generally and the non-derogation clause specifically is narrower than was suggested.  It is designed solely to protect the essential right of First Nations to have access to safe drinking water.  Let me state that the government is not changing the deal regarding Aboriginal and treaty rights.  The non-derogation clause is not a derogation clause since it cannot diminish the protection provided by section 35 of the Constitution Act, 1982.

The government’s intent is to maintain the current approach where it is possible that infringement could be justified in accordance with the test developed by the Supreme Court of Canada in R. v. Sparrow.

The federal government takes section 35 rights seriously and seeks to protect both Aboriginal and treaty rights.  The Constitution Act, 1982, provides strong protection of Aboriginal and treaty rights, and this is what the proposed non-derogation clause in Bill S-8 aims to reaffirm.  The Supreme Court of Canada has reminded us over the years that Aboriginal and treaty rights exist.  They are not absolute.  Like any other rights in Canada, governments can only justify infringements of Aboriginal and treaty rights in accordance with a strict justification test developed by the Supreme Court of Canada.

The non-derogation clause in Bill S-8 has been designed with this test in mind.  It reaffirms the need to balance rights as the Supreme Court of Canada has confirmed in many judgments.  In other words, it does not take any Aboriginal and treaty rights away.  It preserves the status quo regarding Aboriginal and treaty rights in Canada by simply reminding us that, as the Supreme Court of Canada has affirmed, limits to Aboriginal and treaty rights do exist.

One of the main points of this test, developed in the seminal Supreme Court decision of R. v. Sparrow is whether the infringements would be done for a “valid legislative objective.”  As I mentioned during the second reading debate of Bill S-207, an Act to amend the Interpretation Act (non-derogation of aboriginal and treaty rights), it is my opinion that the provision of safe drinking water is a pretty clear “valid legislative objective.”

The non-derogation clause merely reaffirms the legislative objective of Bill S-8 and aims to bring balance to the discussion of Aboriginal treaty rights in the context of safe drinking water, in complete conformity with the Sparrow decision.

This leads me to my third and final point.  This non-derogation clause is the product of collaboration and compromise between First Nations and the government.  It embodies the balance that must be struck by First Nations between Aboriginal and treaty rights and the larger community’s need to set rules to help guarantee that everyone has access to safe, reliable and clean drinking water, which both the federal government and First Nations strongly believe in.

The non-derogation clause sets the context for the kind of important discussions that will have to take place between government and First Nations when regulations are developed. First Nations and government will work together to identify the parameters needed to ensure access to safe, clean, and reliable drinking water.  The regulations will strike a balance between meeting prescribed standards and local decision making.

The non-derogation clause, as written in Bill S-8, is important to uphold the objective of the legislation and to provide tools to both government and First Nations leaders to ensure First Nations women, children and men can have access to clean, safe and reliable drinking water.

During the extensive consultation that took place over the last six years, numerous First Nations public works specialists expressed the need to have tools to do their work properly and to have access to appropriate safeguards to provide drinking water to fellow community members.  The non-derogation clause has been designed to ensure that all the tools that will be included in the regulations can be used.

In conclusion, I would like to remind the honourable senators of my three main points.  Amending the non-derogation clause to remove the qualifier “except to the extent necessary to ensure the safety of drinking water on First Nation lands” would prevent the government and First Nations from protecting sources of drinking water on First Nations lands.  The final phrase of the non-derogation clause is very narrow, but important, since it helps to protect the essential right of all First Nations men, women and children to have access to safe, reliable and clean drinking water, like all other citizens of this country.

As noted in the Indigenous Bar Association’s submission to the Standing Senate Committee on Aboriginal Peoples:

The Crown’s legislative agenda with respect to Bill S-8 must also consider First Nations’ health and safety at all times.

This non-derogation clause is the product of collaboration and compromise.  It embodies the balance which must be struck between Aboriginal and treaty rights and the larger community’s need to set rules to help guarantee that everyone has access to safe, reliable and clean drinking water.

For over six years, this government committed to working with First Nations to remedy the fact that residents of First Nations communities did not enjoy the same protection for health and safety of drinking water as all other Canadians.  Six years later, here we are today with what is an essential milestone in rectifying this unacceptable situation.

This enabling legislation will allow the Government of Canada to work with First Nations across the country to develop appropriate and effective regulatory regimes for First Nations communities.  As Senator Dyck said herself:

…the whole bill is designed to develop and enact regulations for the provision of safe drinking water on First Nation lands…these can be crafted satisfactorily by the department and the First Nations working together.

Honourable senators, it has taken us six years to get here.  While theoretical legal debates have their place, now is the time for leadership and for action.  Now is the time to support First Nations and to move forward in securing healthier and safer communities by regulating drinking water and providing for safe treatment of waste water.  This bill is essential for the health and safety for First Nations men, women and children.  I strongly urge the honourable senators to vote against the motion to amend clause 3, as proposed by the honourable senator, and give third reading to this important bill.

Speech – Bill S-8: Safe Drinking Water for First Nations