Chiefs of Ontario

Written Submission to the Senate Standing Committee on Aboriginal Peoples

on Bill S-11: Safe Drinking Water for First Nations Act

February 8, 2011

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ABOUT THE CHIEFS OF ONTARIO The Chiefs of Ontario (COO) is a coordinating body for 133 First Nations communities located within the boundaries of the Province of Ontario. The purpose of the COO office is to enable First Nations leadership to discuss regional, provincial and national priorities affecting First Nations people in Ontario and to provide a unified voice on these issues. Contact Information: Administrative Office 111 Peter Street, Suite 804 Toronto, ON M5V 2H1 Toll Free: 1-877-517-6527 Phone: (416) 597-1266 Fax: (416) 597-8365 Chiefs of Ontario website: www.chiefs-of-ontario.org © Chiefs of Ontario 2011

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Executive Summary First Nations citizens 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 to apply our laws and values respecting water management. Our entitlement to enjoy safe drinking water is a fundamental human right and is an aspect of food security assured through the recognition and affirmation of our aboriginal and treaty rights pursuant to section 35 of the Constitution Act, 1982 and further supported by the United Nations Declaration on the Rights of Indigenous Peoples. The issue of safe drinking water and the appropriate handling of wastewater are thus very important to First Nations. For too long, First Nations have lived without clean water and without the infrastructure necessary to safely handle both water treatment and wastewater. First Nations located in Ontario have repeatedly stated that critical infrastructure needs must be addressed prior to the development of legislation on the waters. First Nations are not opposed to regulations in respect of water but are opposed to unilateral imposition of legislation. It has been stated time and time again that unilateral development of legislation and policy does not work and impedes progress on eliminating poverty in First Nation communities. The Chiefs in Ontario Assembly have affirmed their commitment to achieving the highest possible drinking water standards on reserve, however to reach this goal infrastructure needs must first be met.1 The reasons for unsafe drinking water are very clear and have been stated by both the Royal Commission on Aboriginal Peoples (RCAP) and the Expert Panel on Safe Drinking Water for First Nations (hereinafter “Expert Panel”). The RCAP urged Canada to address this shameful situation but the recommendations regarding First Nations‟ drinking water have largely been ignored2. The Expert Panel was explicit about the main reason for Canada‟s failure:

The federal government has never provided enough funding to First Nations to ensure that the quantity and quality of their water systems was comparable with that of off-reserve communities.3

It is imperative that we move forward in a collaborative way to prevent further harm to First Nations peoples (and to avoid further embarrassment to Canada.) The current prescriptive approach of incorporation by reference is not acceptable to First Nations. All three recommendations, of the Expert Panel report, must be fully explored in order to determine the best option for addressing First Nations on reserve water issues. There are options First Nations are willing to explore with the Crown. These options are based on recognizing First Nations law and working with the federal and provincial governments to harmonize our respective approaches, laws, and values respecting water

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th All Ontario Chiefs Conferences, June 3-5, 2008. Resolution 08/11, Drinking Water Legislation.

2 Royal Commission On Aboriginal Peoples, Public Policy and Aboriginal Peoples 1965-1992: Summaries of Reports by Federal

Bodies and Aboriginal Organizations, vol. 2 (Hull: Canada Communication Group, 1994) at 226-27[.(RCAP] 3 Report of the Expert Panel on Safe Drinking Water for First Nation, November 2006. Minister of Public Works and Government

Services, p.22 [Expert Panel].

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management (on which the assurance of safe drinking water depends). To date, the federal Crown has refused to explore such opportunities, and has limited the discussion to its own preferred option. This written submission to the Senate Standing Committee on Aboriginal Peoples elaborates upon our position, in opposition to Bill S-11, and is divided into the following sections:

I. Background II. First Nations‟ Concerns with Bill S-11 III. The Way Forward IV. Recommendations & Conclusion

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I. BACKGROUND The Federal Government‟s 2006 Plan of Action for Drinking Water in First Nation Communities was intended to address the most serious water-quality problems on reserve, establish national standards for the operation of treatment facilities, and ensure mandatory training for all treatment plant operators. As part of the Plan of Action, a panel of experts was established to provide advice on options for an appropriate regulatory framework, including new legislation. This panel of experts explored options for a regulatory framework that would enhance First Nations drinking water safety. The Panel held regional hearings throughout the summer of 2006. From these hearings, a report was produced that contained a comparative analysis of options for a regulatory framework. The Expert Panel identified five possible options for creating a regulatory framework for safe drinking water on reserves:

1. Existing provincial regimes could be used as “laws of general application”; 2. Regulations might be passed by Orders in Council under existing federal statutes; 3. Federal Regime: Parliament could enact a new statute setting out uniform federal

standards and requirements; 4. Provincial Regimes: Parliament could enact a new statute referencing existing

provincial regulatory regimes; or 5. Customary Law Regime: First Nations could develop a basis of customary law

that would be enshrined in a new federal statute. However, after commissioning a legal analysis, the Expert Panel concluded that the first two options were not workable. In the 2007 report of the Senate Committee on Aboriginal Peoples, “Safe Drinking Water for First Nations,” this Committee essentially agreed with the Expert Panel on the necessity that funds be identified by the Department of Indian and Northern Affairs as a pre-condition to legislation. This Committee also expressed concern that INAC was proceeding with a legislative approach that is likely to be resisted by First Nations and could create a patchwork of regulations and standards across the country. Two recommendations were made:

1. INAC should undertake an independent needs assessment for individual First Nations

2. INAC should undertake a comprehensive consultation process with First Nation communities and organizations regarding legislative options with a view to collaboratively developing legislation.

In 2008, the Chiefs in Ontario hosted a Water Policy Forum to begin a discussion on the water issues dealt with by First Nations. This forum provided a unique opportunity for First Nations and government officials to share experiences and strategies in dealing with threats to the waters. The result of the water forum was the Water Declaration of the Anishinaabek, Mushkegowuk, Onkwehonwe in Ontario and the development of strategies to implement this declaration.

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Also in 2008, INAC proposed, in 2008, a legislative framework for drinking water and wastewater at the All Ontario Chiefs Conference (AOCC)in which they clearly stated that this presentation was not consultationIn response to this presentation, the Chiefs in Assembly passed resolution 08/11 calling upon the Federal government to provide sufficient capital funding for all infrastructure and human resources, to consult and accommodate First Nations interests, and to provide adequate resources for an impact and economic analysis of the three remaining recommendations made by the Expert Panel. The following year, the Ontario Chiefs in Assembly passed resolution 09/19 in which the Federal Government‟s legislation was deemed unacceptable and the Government was called upon to develop a meaningful consultation process. Most recently, the Chiefs in Assembly passed resolution 10/21, which contains an outright rejection of Bill S-11 in favour of First Nations developing their own water management systems. II. FIRST NATIONS’ CONCERNS WITH BILL S-11 There are numerous problems and potential problems with both the Bill itself and the process employed in developing the Bill. These concerns include: potential violations of our collectively held Indigenous human rights, the incursion on our inherent jurisdiction, lack of consultation, as well as, extensive constitutional and aboriginal and treaty rights issues. a. Potential human rights violations

In a historic meeting of the Human Rights Council, on September 30, 2010, the UN affirmed on by consensus that the right to water and sanitation is derived from the right to an adequate standard of living, which is contained in several international human rights treaties. While experts working with the UN human rights system have long acknowledged this, it was the first time that the Human Rights Council made a statement on the issue. According to Catarina de Albuquerque, UN Independent Expert on Human Rights (obligations related to access to safe drinking water and sanitation):

this means that for the UN, the right to water and sanitation, is contained in existing human rights treaties and is therefore legally binding [...] this landmark decision has the potential to change the lives of the billions of human beings who still lack access to water and sanitation.

Ms. De Albuquerque further stated that the right to water is a human right, equal to all other human rights, “which implies that it is justifiable and enforceable.” In an international law context, our resource rights and our right to self-determination cannot be extinguished, a point of law recognized internationally by the United Nations

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Declaration on the Rights of Indigenous Peoples (hereinafter “UNDRIP). The Crown is therefore under an obligation to explore First Nations options for the recognition of our customary laws as these relate to the waters. Federal and provincial governments should be striving to achieve the standard set by the United Nations Declaration on the Rights of Indigenous Peoples of free, prior and informed consent on matters affecting resources in our traditional lands that are an aspect of our right as peoples to self-determination. As traditional owners we have an inherent right to make decisions about cultural and natural resource management in Ontario. In accordance with Article 19 of the UNDRIP, we must have a central role in the development, implementation and evaluation of policy and legislative or administrative measures that may affect us concerning the waters. Indeed, numerous articles of the UNDRIP are implicated in any discussion on the issue of water in relation to Indigenous Peoples. The following human rights are of particular relevance:

The right to self-determination (article 3);

The right to maintain and strengthen distinct political, legal, economic, social, and cultural institutions (article 5);

The right not to be subjected to forced assimilation or destruction of their culture (article 8);

State consultation and cooperation in good faith to obtain free, prior and informed consent before adopting and implementing legislative or administrative measures (article 19);

The right to the improvement, without discrimination, of their economic and social conditions including sanitation and health and States shall take effective or special measures to ensure the continuing improvement of said economic and social conditions (article 21);

The right to determine and develop priorities and strategies for exercising their right to development (article 23);

The right to maintain and strengthen their spiritual relationship with their traditionally owned territories and waters (article 25);

The right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired (article 26);

The right to a fair, independent and impartial process pertaining to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired (article 27);

The right to redress or restitution for the lands, territories and resources which they have traditionally used and which have been confiscated, taken, occupied, used or damaged without their free, prior, and informed consent (article 28);

The right to conservation and protection of the environment (article 29);

The right to approve the commercial use and development of water on their traditional territories (Article 32.2); and

The right to access financial and technical assistance from States and through international cooperation, for the enjoyment of the rights contained in the Declaration (article 39).

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Clearly none of these rights have been achieved during the development of Bill S-11. b. Encroachment on First Nations’ inherent jurisdiction Bill s-11 gives Canada the authority to make any provincial law “as amended from time to time” apply to First Nations as federal law. This would occur at the sole discretion of the federal cabinet, without any limitations and without any role for First Nations. The Bill will trump all First Nations' "laws and by-laws", undermining powers First Nations have had under the Indian Act since 1951 and any authority First Nations have over water pursuant to the inherent right of self-government. Cabinet will also have the authority to determine the extent to which the Crown may abrogate and derogate Treaty rights - in direct contradiction to s.35 of the Constitution. Further, Canada will have the authority to force First Nations into agreements with third parties to operate First Nation water systems. The terms of those agreements can be determined by Canada under the Bill. There is no national template for municipal/First Nation partnerships and as such there will be varying elements of type and scope of partnership across the country – resulting in some inequality. A related concern is that the private sector will have the ability to gain entry into First Nations communities as owners and operators of water and wastewater facilities. This would occur due to the lack of infrastructure, resources and training within First Nations to provide their own water and wastewater facilities. The private operation of public facilities can lead to higher costs of service and user fees which would then be billed to First Nation on reserve members - resulting in further inequality. Canada will have the authority to give "judicial, legislative, and administrative power" to "any person" to carry out the Bill and regulations passed under it. And also, Canada will have the authority to determine the fees that are payable for drinking water on reserve - with no role for First Nation governments or members in this decision.

c. Practical considerations (accountability, liability, capacity) Bill s-11 contains practically no liability for Canada, it will nearly all fall upon First Nation governments. This will be achieved through Canada‟s ability to “deem” a First Nation to be the owner of water systems that are not owned by a First Nation. This means that Chief and Council will likely be liable if a drinking water treatment plant fails to provide safe drinking water. The federal government is of the view that just adopting provincial standards is „a more straightforward operating environment‟, creates a „common base to evaluate the effectiveness‟ of the systems. However, doing this will not ensure safe drinking water for First Nations as provincial regimes contain numerous gaps, inadequacies, and variability. An example of this is: There is no standard list or requirement that certain contaminants in drinking water be monitored.

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An infrastructure needs assessment should have been done prior to the development of legislation. Also, sufficient new capital funding is required for all infrastructure and human resource requirements.

d. Constitutional and treaty analysis The Crown‟s duty to consult and accommodate The Crown failed to abide by laws respecting consultation and accommodation in the lead up to and drafting of Bill S-11. There was no comprehensive consultation process with First Nations communities and organizations regarding legislative options, including those found in the reports of the Expert Panel on Safe Drinking Water and the Standing Senate Committee on Aboriginal Peoples. This lack of consultation effectively ignores important case law describing the Crown‟s duty to consult.4 More than „mere consultation‟ is required given that water is such a vital resource necessary for life. In Delgamuukw, the Supreme Court of Canada described the general nature of the Crown‟s duty to consult where aboriginal title can be affected. The Supreme Court stated that, even in the rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith and with the intention of substantially addressing the concerns of the Aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an Aboriginal nation, particularly when laws or regulations are proposed respecting Aboriginal lands.

Meaningful consultation requires that First Nations are placed in a position to: make informed decisions about a course of action proposed by the Crown, understand the effects of Crown proposals, and ensure that those proposals respect aboriginal and treaty rights and meet the needs, aspirations and concerns of First Nations‟ citizens. Meaningful consultation means that during the preliminary assessment and dialogue stage the Crown ensures that all information pertaining to the proposed action, project, policy or legislation is provided. A preliminary exchange of information must be followed by efforts to meet any gaps in information identified by First Nations in order to respond and then, a jointly designed process for substantive dialogue on the issues for decision should take place. The process employed by the federal Crown in conducting the regional First Nation impact analyses contained a number of deficiencies. These flaws undoubtedly affect the extent to which this process could be characterized as consultation or as part of a consultation process:

i) Vagueness and imprecision in characterizing the process. Throughout the

process designed by the federal government, the terms „engagement‟ and

4 Musqueam Indian Band v. British Columbia, 2005 BCCA 128; Squamish Indian Band v. British Columbia (Minister

of Sustainable Resource Management), 34 B.C.L.R. (4th) 280, 2004 BCSC 1320

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„consultation‟ were used by the Crown or its agents interchangeably and in very imprecise ways. The federal Crown used both terms throughout this process without being clear on what the difference is between them, or where „engagement‟ ends and consultation begins. For example, at an „engagement‟ session in Thunder Bay, it was stated that the so-called „engagement sessions‟ were „part‟ of a „consultation process‟.

ii) Failure to include First Nations in designing the process. Inclusion of First Nations in process design is a best practice that minimizes the risk of conflict and lack of clarity in process in any effort at meaningful consultation. The typical approach of the federal Crown was evident in this process – the timelines and other aspects of the process were geared to meet only the requirements of the federal decision-making process. No consideration was given to incorporating the requirements of First Nation decision-making processes such as the need for First Nations leaders to share information and discuss issues for decision with their councils and citizens, and to be able to seek additional information from the Crown before taking a position and engaging in discussions with the federal government. No provision was made for a process ensuring the essential give and take and substantive informed dialogue on the potential impact on aboriginal and treaty rights of the Crown‟s proposal, or a process where First Nations could identify gaps in information from the Crown, and receive and analyze such information before responding. Only two one-day sessions were held to discuss the matter of vaguely described legislative proposals for the regulation of safe drinking water for all of the First Nations in Ontario and a mere $22,000 was provided for all 133 First Nations in Ontario to carry-out a so-called „impact analysis‟. The complexity of the topic of designing a regulatory system to promote safe drinking water, and the complexity of the provincial statutes and regulations the federal government supposedly wished to focus on in this process, should make it obvious that any form of meaningful consultation would require more than two days of discussion with 133 First Nations.

iii) The ad hoc and self-interested approach of the federal government to consultation with First Nations. In the absence of a federal consultation policy, the design and implementation of federal consultation processes on legislative initiatives remains ad hoc and arbitrary in nature from one initiative to another. The design of this process was driven exclusively by the needs of federal decision-making processes. There is, and never has been, any attempt to explore with First Nations what timelines and information requirements First Nations‟ governance laws, values and processes require to respond to federal legislative initiatives.

iv) The lack of any substantive section 35 analysis in considering a legislative initiative to apply to First Nations’ reserve lands by incorporating provincial laws by reference. The federal Crown has so far ignored First Nations

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perspectives on the relationship between safe drinking water and First Nation aboriginal and treaty rights. The federal Crown has provided no analysis of how section 35 of the Constitution Act, 1982 applies to the preferred federal option, beyond asserting (without offering an opportunity for a substantive dialogue and exchange on the issue) that a non-derogation clause would not be required for any federal legislative initiative to incorporate unnamed provincial water statutes. The lack of substantive dialogue is also evidenced by the lack of explanation about why the options favoured by First Nations and endorsed by Expert Panel and Senate Committee involving recognition of First Nations law and the incorporation of customary law in the body of any proposed federal statute have not been accepted. The federal discussion paper‟s treatment of the recommendations of the Expert Panel and the Senate Committee on Aboriginal Peoples is disingenuous and glosses over the absence of support for precisely the option the federal government is now exclusively pushing for in the „impact analysis‟ process.

v) The process was founded on a pre-determined decision and one that ignored or denied the existence of aboriginal and treaty rights to water on reserves and was designed to avoid any substantive dialogue between the Crown and First Nations on aboriginal and treaty rights issues in relation to water. The case law has been clear there can be no meaningful consultation where the Crown has already decided the outcome. There is also case law that there can be no meaningful consultation within the meaning of section 35 of the Constitution Act, 1982 where there is a denial of the existence of aboriginal and treaty rights by the Crown regarding the matter supposedly the subject of „consultation‟. The „impact analysis‟ process makes clear that the Crown is not seriously considering nor is it genuinely open to any option other than its preferred option of federal legislation incorporating unnamed provincial water statutes and it has no intention of accommodating First Nations customary law or engaging in a process to harmonize First Nations values and approaches with settler values and approaches respecting the regulation of safe drinking water on reserves.

vi) Inadequate information provided to First Nations about the details of the preferred federal option to be able to properly assess the potential impact on Aboriginal and treaty rights. The federal government has referred vaguely to its intent to incorporate provincial water legislation without indicating precisely which statutes it is talking about. In Ontario, there are at least three statutes that impact drinking water quality directly (Ontario Water Resources Act, Safe Drinking Water Act, 2002, Clean Water Act, 2006) and an even larger number that address water and water protection more generally. First Nations have rights and interests that are affected or can potentially be affected by this entire field of provincial lawmaking activity. In any event, First Nations have been placed at a significant disadvantage in responding to the federal government‟s proposal in general, and the impact

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analysis questions in particular, because the Crown has never specified which or how many of the Ontario statutes are at stake. There has been no description of how the proposed new regulatory regime would work in the specific context of Ontario legislation nor exactly how provincial legislation is to be merged within a federal statutory and regulatory regime. Further, the federally designed and controlled process involved the posing of very broad questions about the potential impacts of very general statutory elements under diverse provincial statutory regimes. This approach is inherently flawed. The process assumed that water technicians would assist First Nations in responding to these questions, however the questions implicitly involve complex legal and policy questions and a proper response would require more detail in the questions, and a response informed not only by technical expertise but informed legal opinion.

vii) The lack of information about the central pre-requisite identified by previous federal studies for a new regulatory regime for drinking water on reserves – specific federal commitments to provide the resources necessary to upgrade capacity and infrastructure in order to meet any new legislative and regulatory standards. The fact that the majority of First Nations do not have the infrastructure, human resources or operating budgets to meet even current federal guidelines, much less standards typical of provincial laws is not in dispute. The need to assess the status of these questions for each First Nation in Ontario and a plan to address shortcomings in resources and infrastructure is the starting point for any consultation process on the development of any safe drinking water regulatory regime to be applied to First Nation communities - as concluded by the Walkerton Inquiry, the Expert Panel and the Senate Committee on Aboriginal Peoples. A needs assessment and gap analysis for each community is required before any proposed legislative regime can be crafted or applied to First Nations communities in order to know what the capacity is within the community and the training and other resources required to be able to meet any new legislative standards such as third-party audits, reporting requirements, occupational health and safety obligations and operators liability, among many others. The planning process and the resources to get this work done is a central piece of information for any impact analysis and yet First Nations have been asked to respond to questions about impacts in the absence of a clear description of the specific statutes or the resources that will be available. Likewise the federal Crown has been unwilling to date to come to the table with the Province and First Nations to discuss resources for First Nations to map the watersheds that supply drinking water to First Nations communities and which must be protected to ensure that supply. The federal Crown has not yet supplied this vital information needed to conduct an impact analysis.

Improper delegation of power

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Bill S-11 contains provisions which effectively amount to an improper delegation of power. While it is legal for Parliament to delegate its law-making powers to a Federal Minister, it is not legal for a Minister to further delegate his, or her, powers (for example, his/her regulation-making powers) to another body, such as a province - this is also known as the rule against sub-delegation. If incorporation by reference brings in provincial regulations that may be “amended from time to time” by the province, then the federal government is essentially allowing the province to make the decision as to the appropriate standards on an on-going basis. This would be a sub-delegation of the federal governments‟ law-making powers to the province and is barred by the Constitution Act, 1876.

The Federal Government cannot give powers to the province that are within federal jurisdiction – for example: the management of water on federal First Nation reserve lands. Even where delegations are allowed, they must relate to a power that the province currently has. If the provincial regulations, “as amended from time to time,” govern the provision of safe drinking water on reserve, it can be argued that this is illegal as the province has no jurisdiction under the Constitution Act, 1876 to regulate matters regarding „Indians and lands reserved for Indians.‟ This is particularly true if those matters relate to the elements that are related to the core of First Nations rights - such as self-government and water rights. The federal government is essentially allowing the province to make the decision as to the appropriate standards on an ongoing basis. Potential impacts on aboriginal and treaty rights Any proposal for lawmaking to ensure safe drinking water on reserve necessarily involves legislating in regard to the waters of First Nations in our reserve lands and our traditional lands, and necessarily implicates our inherent rights, jurisdiction and responsibilities to manage those waters. Our relationship to all water, and especially the drinking water we rely on for our very survival, is a very important aspect of our customary laws. The customary law of each First Nation is integrally connected to our traditional spiritual beliefs. Consequently, aboriginal rights in a broad cultural and spiritual context are affected by any legislative proposal directed at regulating water sources, quality and quantity. The nature of First Nations‟ interest in our reserve lands is indistinguishable from Aboriginal title (Guerin) and necessarily includes the water lying within them and flowing through them. The inclusion of water in First Nations‟ aboriginal title, the inclusion of customary law as an aspect of aboriginal title, and the protection of those interests by s. 35 of the Constitution Act, 1982 is evident in the reasoning of former Justice McLaughlin in her dissenting opinion in Van der Peet:

This right to use the land and adjacent waters as the people had traditionally done for its sustenance may be seen as a fundamental Aboriginal right. It is

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supported by the common law and by the history of this country. It may safely be said to be enshrined in s. 35(1) of the Constitution Act, 1982.5 […] the Crown in Canada must be taken as having accepted existing native laws and customs and the interests in the land and waters they gave rise to, even though they found no counterpart in the law of England. In so far as an Aboriginal people under internal law or custom had used the land and its waters in the past, so it must be regarded as having the continuing right to use them, absent extinguishment or treaty.6

As the British Columbia Supreme Court stated in the Tsilhqot’in7 case, “The right of exclusive use and possession is fundamental to Aboriginal title. Aboriginal title confers a right to the land itself, and the right to determine how it will be used.” In the case of reserve lands in Ontario, the aboriginal title interest of First Nations has never been extinguished, or is of a nature that is indistinguishable from aboriginal title. In addition to aboriginal title in our reserve lands and waters, First Nations have inherent rights of self-government that include inherent jurisdiction over the management and protection of those waters. Similar rights of self-government extend to the management and protection of waters throughout the traditional territory of First Nations. The preferred federal option of incorporation by reference of provincial laws of general application is not available for matters affecting reserve lands. The assignment of exclusive federal jurisdiction under s. 91(24) of the Constitution Act, 1867 has a purpose related to the protection of aboriginal and treaty rights. An attempt by the federal government to effectively transfer this jurisdiction by incorporating provincial laws relating to reserve lands would not only be invalid and unconstitutional because of the division of powers, it would undermine the protective purpose and fiduciary duty assigned the federal Crown pursuant to s. 91(24) of the Constitution Act, 1867 in regard to “Indians and lands reserved for the Indians”. Even assuming that incorporation by reference of provincial laws for application to reserve lands and waters is constitutionally possible, accommodation issues would arise with respect to the substance of the provincial legislative framework itself and not just proposed regulations to be made under the federal law that is to incorporate provincial laws. For example, Ontario‟s Safe Drinking Water Act, 2002 makes no reference to Aboriginal or treaty rights and specifically makes no mention of, or accommodation for, the inherent rights and responsibilities of First Nations to manage and care for our water resources and protect the quality of the drinking water entrusted to us by the Creator since time immemorial. There is no role provided for First Nations regulatory authority or our inherent stewardship responsibilities. Compliance measures such as inspection activities are an integral part of the legislative framework of the Safe Drinking Water Act, 2002 and not only its regulations. To

5 R v. Van der Peet [1996] 2 S.C.R. 507 at para. 275

6 Van der Peet, at para. 269

7 Para. 1048

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integrate the perspectives, values, customary laws and roles of First Nations governments would require substantive amendment of the Act itself, even assuming the approach of incorporation of provincial law was acceptable. Under section 3 of this provincial act, the Ontario Minister of the Environment (or other designated Minister) has broad powers to oversee the regulation of safe drinking water in Ontario. This function does not provide a role for First Nations regulatory authority or our inherent stewardship responsibilities. Under section 7 the same act, the Ontario Minister of the Environment (or other designated Minister) is required to appoint a Chief Inspector to carry out a number of designated duties. The Crown has failed in this process to inform First Nations of how they envision sections 3 and 7 and many sections like them working in the context of incorporation into federal law. Are provincial Ministers, inspectors and other enforcement officers expected to assume new duties in regard to First Nations‟ reserve lands and waters, and is this to happen as if First Nations governments and customary laws do not exist? Alternatively, are these statutory responsibilities to be somehow transferred to which federal Ministers and officials, again as if First Nations governments and customary laws do not exist? The approach taken by the Crown in this process also leads us to ask: Why is the federal government seriously contemplating further building and financing lawmaking, human resources and responsibilities of provincial or federal governments in the area of water regulation, while ignoring those of First Nations governments? Another example of lack of accommodation of aboriginal and treaty rights under the statutory framework of water legislation in Ontario if incorporated into federal law is the broad powers assigned to the Ontario Minister of the Environment to issue directives under section 9 of the Safe Drinking Water Act, 2002. Under this section the Minister may issue a written directive consistent with the purposes of the Act that relate to the exercise of a power or the performance of a duty by a person or entity appointed, designated or established under this Act. During the Crown‟s „engagement‟ or „consultation‟ process it was not suggested which Minister in which government (provincial or federal) would be assuming such a power in relation to First Nations reserves under its preferred legislative option. There also was no indication that the Crown had contemplated respecting or accommodating the fact that there are First Nations governments with inherent law making authority and inherent rights in respect of drinking water on reserves. Such broad Ministerial powers fail to accommodate the inherent powers and authorities of First Nations governments on reserves as they relate to our aboriginal and treaty rights and aboriginal title to water on reserves. These are just a few examples of how some of the provincial laws the federal government may intend to incorporate by reference do not reflect or contain any harmonization or reconciliation with First Nations values and customary law, and therefore the preferred federal option carries a serious risk of negative impacts on aboriginal and treaty rights, including aboriginal title. More generally, whenever the Crown proposes the application of a legislative framework to First Nations, particularly on reserves, accommodation of customary law issues will arise and must be explored through a section 35 analysis as part of any meaningful consultation process. The potential risk of infringement of

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aboriginal and treaty rights from legislative action of any kind applicable to reserve lands is high given the complexity, scope and nature of aboriginal and treaty rights. In the opening clauses of S-11, there are a number of assumptions on the part of the government related to the issue of safe drinking water. Is there constitutional authority for the government of Canada to unilaterally change the relationship between the waters and the First Nations? Canada is making a number of assumptions concerning their role and ability to implement regulations without the First Nations. The legislation called S-11 is to put in place a regulatory system that has no national scope. The regulatory system will rely on the provinces and the territorial governments to provide the frameworks. So, there will be different systems and different values for safe drinking water across the country. What is the purpose of creating such a system? The most critical assumption is that Canada has the authority to make regulations on the waters. The opening preamble paragraph states:

whereas existing laws do not provide sufficient authority for Canada or first nations to establish such regimes:

There is no authority for Canada by its admission. First Nations however maintain their authority to deal with the waters - it is our inherent right. In many treaties, the Elders refer to the treaties lasting as long as the waters or rivers flow. It was clear that the waters has always been a critical element of life. All living things need the waters to live and survive. The Chiefs of Ontario have addressed their relationship to the waters in the Water Declaration8 approved by the Chiefs in Assembly. There is an inherent relationship to the waters contrary to the opening clauses of S-11. The main difficulty for Canada is the lack of understanding of the relationship and the regimes established by First Nations. The State is looking at the issue as a one dimensional issue: access to safe drinking water and wastewater. There are a few clauses of the proposed Act setting out the government‟s intention to disregard First Nations in the approach to the issue of safe drinking water. For example, the definitions of a “band” as coming under the Indian Act or the lands subjected to the First Nations Land Management Act. There is an incorporation of the Land Management Act that most First Nations have rejected. It is imported into the legislation and sets the stage for later implementation of the legislation. In addition, the Assembly of First Nations (AFN) National Chief at the recent annual assembly indicated that the Chiefs wanted to get out of the Indian Act. Does this leave the First Nations‟ land in the Land Management Act? There is no reference to our “reserved lands”. When we made treaties, we agreed to share certain lands with the Crown but we “reserved lands” for ourselves. Canada has changed these reserved lands into reserves

8 Chiefs of Ontario, 2008. Water Declaration of the First Nations of Ontario.

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and put them under the Indian Act. Now, there is an open door to convert these lands into “lands of disposition” as set out in the proposed legislation. The first operative paragraphs of S-11 makes reference to the ability of the Government of Canada to make regulations relating to lands. There is no mention of treaties. There is no mention of water. It is to make regulations on First Nations‟ lands. 9 Section 3(1) sets out the scope of the government‟s proposed ability to make regulations applicable on „first nation lands‟ (related to drinking water and the disposal of wastewater.) Then, there are eight (8) areas where the government of Canada can make regulations for the First Nations. There is no mention of working with First Nations. The regulations of a government are usually drafted by officials and given to the Governor in Council for adoption without being seen by the public until they are passed. In most instances, there is no consultation in the drafting of regulations. This is the clear intention of the government in proposing Bill S-11. In section 3(2), the Governor-in-Council, on the recommendation of the Minister of Health, will make the regulations on the standards for the quality of drinking water on „first nation lands‟. There is no involvement of First Nations. It is a unilateral government action using their system to make decisions for First Nations. The level of incursion into First Nations by this legislation becomes clear in the next sections. Under section (4), the regulations are very specific on the transfer on the authority away from the First Nations. Under 4(b), the regulations may confer any legislative, administrative, judicial or other power on any person or body. There is no reference to First Nation. The only definition in the proposed bill refers to body – which is an entity established by the provinces. The regulations can force First Nations into management agreements. There are provisions for third party managers of the water systems. The third party managers can impose a fee and a method of determining the fee for the water. In the event of the failure to pay the water bill, there is a further power to implement an interest rate system on the user. Other clauses in the proposed Bill are vague and therefore problematic. For example – what is the purpose of section 4 (h), (i) and (j)? These clauses confer the power on a person to seize and detain things – things are not defined. Why would things be seized? There are clauses for searching property? Why? There is sweeping power to audit the books, accounts and records of a person to whom, or bodies to which, powers are conferred by regulations. These clauses do not relat to the issue of water or disposal of waste water. It seems that Canada is imposing a system of security onto the First Nations and our lands without any consultation. Finally, at clause 4(r), the Bill makes a reference to Section 35 of the Constitution Act, 1982. The clause does not compel the Governor in Council to consider the implication of the regulations on the treaty rights. There is a vague reference to the Governor in

9 It is noted that the references throughout the proposed bill only use the lower case for first and for nations. These

are not capped letters. It is very telling. Canada does not want to recognize the minimum that we are our own

Nations.

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Council reviewing the regulation to see if it abrogates or violates the Constitution. If you have no duty or obligation imposed by the legislation, this is an empty clause. It is designed for the First Nations who appear before the standing committees on the review of the legislation and raise the issues of constitutional obligations and treaty rights. The senators or members of the house will refer the leaders to the clause as a means to subdue the criticism of the Bill. Despite clause 4(r), section 6(1) makes it clear that the regulations would prevail over any law or by-law of the First Nations. This section gives the authority of the governor in council through the regulatory system to override any law of the First Nations. INAC makes the uneducated claim that there are no First Nations with a law on water. This of course is not the case - in fact our laws on water predate the entirety of Canadian law.

III. THE WAY FORWARD

The Chiefs of Ontario has numerous drinking water resolutions dating back to 1975. The resolutions provide a general mandate on dealing with lack of clean drinking water in First Nation reserves and the basis of the recommendations stems from various reports such as the recommendations from the Expert Panel Report. The various reports clearly state that the resource gap must first be addressed prior to the development of legislation. It is important for governments to realize that all First Nations never intended to relinquish their water-related governance rights when negotiating treaties and so those rights still exist. First Nations have managed the environment with their own governance structures/laws prior to contact. We, as residents of Turtle Island need to work together to make sound environmental decisions as it relates to the management of all our relations. We can continue to build on past relationships, co-develop an appropriate path forward with all pertinent information being provided to First Nation leadership so that they can make informed decisions. First Nations have unique knowledge systems that can assist in protecting, managing and conserving all ecosystems. Article 8(j) of the Biological Diversity Convention, ratified by Canada, addresses indigenous peoples indigenous knowledge and the key role this knowledge plays in conservation. Canada needs to acknowledge the role and consult with First Nations on what this role will look like in environmental decision making regimes. The government needs to reconsider their approach to providing clean drinking water to First Nations. One principle the government needs to review is the principle of subsidiarity. The principle of subsidiarity holds that a larger and greater body should not exercise functions which can be carried out efficiently by one smaller and lesser, but rather the former should support the latter and help to coordinate its activity with the activities of the whole community. It means that policies should always be made at the lowest possible level, and that the higher level should only legislate when there is

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unanimous agreement that uniform regulation is necessary. This principle is core to a true consultation process and the basis of a functioning democratic society. To date, INAC had consistently ignored this principle with is pre-determined option and paternalistic attitude. INAC needs to consult with the First Nations at the community level and provide analysis on all options from the Expert Panel Report. Recommendations from resolutions specific to First Nations in Ontario:

Provide sufficient new capital funding for infrastructure and human resource requirements including wastewater and source water protection

Consult and accommodate FNs in the development of legislation for safe drinking water and wastewater in FNs

Provide adequate resources to develop both impact and economic analysis on all recommendations from the Expert Panel report

First Nations leadership need more information to make an informed decision on the three recommendations from the Expert Panel and included in this is the allocations of resources to host adequate consultation sessions with the Chiefs, band managers, and operators of these facilities. Recommendations from Water Declaration:

Strong measures need to be taken to allow Indigenous peoples to participate and share more actively their specific experience, knowledge and concerns in government water decision making

Governments must recognize the significant contribution of customary laws to water, land conservation and must expand their valuation of water and other resources, beyond the material and economic, to encompass the spiritual components.

Watershed management must include participation at the community level

Research areas needed are - a starting point would be the analysis of customary water laws in First Nations in Ontario; water dispute mechanisms

Proactive approaches to defining the rights when water laws are amended or developed

Recommendations from other reports:

Best practices of water management needs to be looked at so the integration of the best can be part of a new solution

Defining roles and responsibilities of all parties involved in current water decision making regimes

Development of a comprehensive water management framework collectively with First Nations

Allocation of adequate resources for full First Nation engagement Continuing to provide inadequate resources violates the spirit, intent and purpose of the treaties.

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IV. RECOMMENDATIONS & CONCLUSION The goal of ensuring safe drinking water in First Nations communities through the proper management of our traditional water can be met through a modern legislative and regulatory framework. From a First Nation perspective, a proper legislative and regulatory framework is one that supported by resources to meet the standards in it; is one that reflects appropriate standards for ensuring public health and safety, and for protecting the environment; and is consistent with the fundamental constitutional value of reconciliation that lies at the heart of section 35 of the Constitution Act, 1982 and which requires the harmonization of First Nation and settler laws. As stated by the Royal Commission on Aboriginal Peoples:

Of all the natural resources, water is perhaps the best suited to shared management because, even under western property law, no one can „own‟ water. Instead, people and jurisdictions have specific rights of use.

Regarding this last criterion, reconciliation and harmonization of laws cannot be achieved by one party dictating or controlling the final outcome of any process of „engagement‟ or „consultation‟. The federal proposal to impose a federal law incorporating (unnamed) provincial water legislation and some unspecified adaptation of regulations is not consistent with the standard for consultation, reconciliation, and the standard of protection of Aboriginal and treaty rights required by section 35 of the Constitution Act, 1982. Throughout the recent history of federal water initiatives aimed at First Nations, the federal government has sought to impose its vision of drinking water regulation on reserves - a vision that contemplates no recognition of First Nations jurisdiction or accommodation of First Nations customary law. The federal Crown has not been willing to engage in meaningful consultation on this issue. The federal government has so far ignored the views of First Nations and the advice of its own Expert Panel on Safe Drinking Water for First Nations regarding both the recognition of customary law and the fact that addressing the infrastructure and resource gap is a necessary pre-requisite for any acceptable legislative or regulatory standard to be applied to the miserable state of resources on reserves. A process of meaningful consultation would seek the reconciliation and harmonization of First Nations laws and values with those of settler governments regarding the protection of water quality and quantity. The federal insistence on its preferred option of only adapting regulations under a ready-made provincial legislative framework does not constitute consultation, reconciliation or harmonization. And despite the complexity of water legislation and regulation in each province and territory, the federal government has failed to provide any detailed information on exactly how this option would work in Ontario. It is not even clear precisely which Ontario statutes dealing with water are contemplated under this option.