UBCIC Submission to Standing Senate Committee on Aboriginal Peoples - Bill S-11

Union of B.C. Indian Chiefs

Submission to the Standing Senate Committee on Aboriginal Peoples

Bill S-11 An Act respecting the safety of Drinking Water on First Nation lands

(Safe Drinking Water for First Nations Act)

February 9, 2011

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 UBCIC Submission to Standing Senate Committee on Aboriginal Peoples - Bill S-11

Executive Summary

The 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)
The lack of safe drinking water to
authorized without regard to the impact on the First Nation communities is not
drinking water supply to First Nation caused by a lack of regulations.

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.

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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.

Introduction - UBCIC

The Union of B.C. Indian Chiefs (UBCIC) is an organization of Indigenous Nations in British
Columbia, founded in 1969, dedicated to promoting and supporting the efforts of
Indigenous Peoples to affirm and defend Aboriginal Title and Rights. UBCIC works with
our members to develop common strategies to defend Aboriginal Title, Rights and Treaty
Rights in legal and political forums, and advocates for the recognition, affirmation and
protection of Aboriginal Title, Rights and Treaty Rights and Right of Self-Determination as
Peoples at the provincial, national and international levels. UBCIC has achieved recognition
as a non-governmental organization (“NGO”) with special consultative status of the Social
and Economic forum of the United Nations.

UBCIC’s mandate includes lobbying Canadian governments to implement and uphold the
legal duties contained within the Canadian Constitution for the honour and respect of
Indigenous Peoples’ rights. UBCIC is guided by the principle that Indigenous Peoples
possess the inherent right and responsibility to care for and protect our traditional lands
and resources, to govern ourselves, and to enter into relationships with other Nations of
Peoples, guided by our own laws and legal traditions.

UBCIC is committed to preserving and protecting water for Indigenous communities,

including water as an incidence of Aboriginal Title, necessary for the practice of Aboriginal
and Treaty Rights. UBCIC has written numerous publications which relate to the

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protection of water resources, and works actively to protect reserve land allotments,
including water, as well as Aboriginal Title, Rights and Treaty Rights which are related to
water. Key publications about water include: Indian Water Rights in British Columbia: A
Handbook (1991) and Stolen Lands, Broken Promises: Researching the Indian Land Question
in BC - (2005) (updated, and taught, on a regular basis) which address questions related to
water allotments to reserve lands.

Water is sacred to Indigenous Peoples, necessary for

all life and a key feature of our relationship with the
The UBCIC agrees that it is
necessary to act to ensure safe land and resources upon the land. Indigenous
drinking water for Indigenous Peoples have a sacred relationship with water and
communities; however, Bill S-11
as currently drafted will not our rights to water are included in our Aboriginal
accomplish this goal. 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.

International Standards

The United Nations Declaration on the Rights of Indigenous Peoples, which Canada endorsed
on November 12, 2010, recognizes the specific rights of Indigenous Peoples’ way of life
including rights around water, and sets out related obligations of States. Of particular
relevance, Article 32 states:

1. Indigenous peoples have the right to determine and develop priorities and
strategies for the development 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 their own representative institutions in order to obtain their
free and informed consent prior to the approval of any project affecting their lands

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or territories and other resources, particularly in connection with the development,

utilization or exploitation of mineral, water or other resources;
3. States shall provide effective mechanisms for just and fair redress for any such
activities, and appropriate measures shall be taken to mitigate adverse
environmental, economic, social, cultural or spiritual impact.

The approach that Canada has taken in passing this legislation (without any meaningful
consultation and without consent) and the content of the legislation itself are in clear
violation of the spirit, intent and promise of the Declaration on the Rights of Indigenous
Peoples.

Violation of the Duty of Honourable

Dealing
The regime proposed in Bill S-11
The regime proposed in Bill S-11 has a number of has serious constitutional
consequences for the relationship
serious constitutional consequences for the between First Nations and the
relationship between First Nations and Canada Crown, and represents an
unwarranted level of intrusion
and the provinces, and represents an and infringement on
unwarranted level of intrusion and infringement constitutionally protected
Aboriginal Title, Rights and
on constitutionally protected Aboriginal Title, Treaty Rights.
Rights and Treaty Rights.

Applying provincial laws and regulations to lands reserve for Indians

Bill S-11 incorporates by reference provincial laws and regulations to apply to Indians and
Indian reserve lands. Section 88 of the Indian Act incorporates provincial laws of general
application to Indians, but not to Indian lands. The blanket incorporation of provincial
laws will create a patch work of laws relating to reserve lands across the country, with
different standards and regimes in place. Bill S-11 creates a situation where provincial
laws could apply to govern activities on reserve lands, where the federal government could
make agreements with provincial or municipal governments, or third party companies, to
administer water regimes on reserve lands.

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In B.C., water is a historically contested resource and there have been instances where the
Province has refused to recognize or set aside the allocations of water attached to reserve
lands that the federal government has made, or has sought to eliminate those allocations.
In subsequent years, the province has continued to assert jurisdiction of water without
regard to Aboriginal Title, Rights, Treaty Rights or reserve land allocations.

Bill S-11 provides Canada with authority and sole discretion to make any provincial law
apply to First Nations as federal law with no role for First Nations. The UBCIC has very
serious concerns about the federal incorporation of provincial water regimes and
regulations. The UBCIC adamantly contests the unilateral imposition of provincial water
laws and regulations (including those yet unknown) upon First Nations.

There has been considerable discussion about the

current legality of Section 88 of the Indian Act
The UBCIC adamantly contests the
unilateral imposition of provincial which incorporates by reference provincial laws of
water laws and regulations
general application to Indians. With respect of
(including those yet unknown)
upon First Nations. water systems and reserve lands, Bill S-11 takes
this one step further, incorporating provincial laws
to apply to reserve lands. We point the Standing Senate Committee’s attention to a series
of scholarly research which questions the constitutional validity of a broad based
incorporation of provincial laws, without an examination of the specific impacts on
Indigenous Peoples rights. 1 Under Section 91(24) of the Constitution Act, 1867 the
provinces do not have the power to regulate Indian lands. In Bill S-11, Canada has
effectively opened Indian lands (reserve lands) up to provincial regulation. This is an
unacceptable and unwarranted intrusion under the guise of drinking water safety (a lofty
goal which cannot be achieved in the regime set put in this legislation).

1
For example, Kent McNeil, “Aboriginal Title and Section 88 of the Indian Act” (2000) 34 U.B.C. L. Rev. 159; K.
Wilkins, "'Still Crazy After All These Years': Section 88 of the Indian Act at Fifty" (2000) 38 Alta. L. Rev. 458 in which
it is argued that the current s. 88 of the Indian Act (incorporating provincial laws in their application to Indians NOT
Indian lands) should be reconsidered and would likely not withstand constitutional scrutiny

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Abrogating and Derogating Section 35(1) Rights

Bill S-11 was conceived, written and passed without consultation, accommodation or any
meaningful involvement with Indigenous Peoples and does not consider nor respect
Aboriginal Title, Rights or Treaty Rights or jurisdictions protected under Section 35(1) of
the Constitution Act, 1982.

The purpose of the duty to consult is to ensure that the Crown takes its constitutional
obligations, and the protective purposes of the Constitution, seriously and meaningfully
into account when passing legislation or taking other actions that impact Indigenous
Peoples. It is not a pro forma obligation, but one that the courts take seriously and enforce.
The Supreme Court of Canada has made it abundantly clear to government that the duty to
consult and meaningfully involve Indigenous Peoples’ in land and resource decisions which
impact them is a real constitutional promise which
the courts will uphold and enforce: R. v. Sparrow,
[1990] 1 S.C.R. 1075, Delgamuukw v. B.C., [1997] 3 In Little Salmon/Carmacks First
Nation the Supreme Court of Canada
S.C.R. 1010, and Haida Nation v. B.C. (Minister of affirmed “[c]onsultation in some
Forests), [2004] 3 S.C.R. 511, and Mikisew Cree v. meaningful form is the necessary
foundation of a successful
Canada (Minister of Canadian Heritage), [2005] 3 relationship with Aboriginal people”
– Canada has failed to consult about
S.C.R. 388. In Haida, the SCC outlined the source of Bill S-11
the duty to consult as follows: “It is a corollary of
s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling
them with other rights and interests. This, in turn, implies a duty to consult and, if
appropriate, accommodate.” In R. v. Kapp, [2008] 2 S.C.R. 483 the Supreme Court affirmed
the notion that decisions with respect to resource development and conservation invoke
duties of consultation and accommodation: “Subsequent decisions have affirmed the duty
to consult and accommodate aboriginal communities with respect to resource development
and conservation; it is a constitutional duty, the fulfilment of which is consistent with the
honour of the Crown: see e.g. Delgamuukw….” In Beckman v. Little Salmon/Carmacks First
Nation, [2010] SCC 253, the Majority adopted the statement of the trial judge that one of
the purposes of consultation is to “avoid the indifference and lack of respect that can be

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destructive of the process of reconciliation”, affirming that “[c]onsultation in some

meaningful form is the necessary foundation of a successful relationship with Aboriginal
people.”

Canadian courts have given very clear direction about the standards that Canada must
meet in upholding the Honour of the Crown in its relationship with Indigenous Peoples.
Both in process, and content, Bill S-11 fails to meet that standard. The legislation will
impact Aboriginal Title, Rights and Treaty Rights, interests in reserve lands and inherent
jurisdictions. When the rights at stake are so high, the duty to consult and accommodate,
and to meaningfully incorporate Indigenous Peoples’ input is at its highest (Haida), yet the
Crown has abdicated its responsibility to consult or accommodate or seek a reconciliation
or jointly agreed upon solution to address the need to ensure safe drinking water for First
Nation communities.

Unsafe Drinking Water for Reserve Communities is caused by a Lack of Resources

and Recognition NOT Lack of Regulation

The problems with safe drinking water in First Nation communities are caused by a lack of
resources and failure to acknowledge the impacts of resource development and extraction
activities that proceed without regard to their impacts on the water supply, not by a lack of
regulations. Conversely, Bill S-11 attempts to solve the problems of safe drinking water in
First Nation communities by imposing and adopting regulations, without addressing the
root causes of the problem.

Bill S-11 requires significant financial and technical

Bill S-11 requires significant capacity, with no commitment to provide adequate
financial and technical capacity,
resources to support implementation of the
with no commitment to provide
adequate resources to support regulations developed under Bill S-11. We draw
implementation of the regulations
the Standing Senate Committee’s attention to
developed under Bill S-11.
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

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States and through international cooperation, for the enjoyment of the rights contained in
this Declaration.”

Specific provisions of Bill S-11

There are a number of provisions in Bill S-11, which abrogate and derogate from Aboriginal
Title, Rights and Treaty Rights.

• Section 4(1) (r) purports to allow Cabinet to decide upon the relationship between
regulations related to safe drinking water and constitutionally protected Aboriginal and
Treaty Rights, by giving Cabinet power to pass regulations that

“provide for the relationship between the regulations and aboriginal and treaty
rights referred to in section 35 of the Constitution Act, 1982, including the extent to
which the regulations may abrogate or derogate from those aboriginal and treaty
rights”

This provision is in clear and direct violation of

Section 35 of the Constitution Act, 1982, and a
dereliction of the duty of Honourable dealings Section 4(1)(r) directly violates
which binds the Crown in its relationship with Section 35 and is a dereliction of
the duty of Honourable dealings
Indigenous Peoples. Governments cannot which binds the Crown in its
simply disregard or pass regulations to eliminate relationship with Indigenous
Peoples. Governments cannot
their constitutional obligations. simply disregard or pass
regulations to eliminate their
Canada does not have the authority, nor can it constitutional obligations.
override constitutional provisions and
appropriate to itself merely by passing legislation, the power to abrogate or derogate
Aboriginal Title, Rights and Treaty Rights. In fact, the very purpose of Section 35(1) is
to protect Aboriginal and Treaty rights from such activity.

• Section 6. (1) provides that “Regulations made under this Act prevail over any laws or
by-laws made by a first nation to the extent of any conflict or inconsistency between
them, unless those regulations provide otherwise.” Under this provision, any
regulations made or under the Act will trump any First Nations’ laws or by-laws. In

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addition to undermining any by-laws passed under the Indian Act that a community
may pass, the provision is not limited and also appears to attempt to derogate from any
laws outside of the Indian Act, such as those reflecting the inherent authority of
Indigenous communities.
• Bill S-11 contemplates a situation in which Canada can impose agreements with
provinces, municipal governments, or other third parties upon First Nations, without
First Nation consent, to operate water systems on reserve lands. In addition to being an
assault on constitutionally protected Rights, this could result in an unacceptable
situation of differential treatment by provincial regimes – a patchwork of legal regimes
which apply to First Nations and Indian reserve lands, varying from province to
province at the whim of provincial legislatures.

• Canada will have authority to give “judicial, legislative and administrative power” to
any person to carry out the Bill and regulations passed under it. This is a broad power
and significant degree of discretion, with no limitation and no effort to define or limit
how that discretion may be exercised, or how Aboriginal Rights must be taken into
account in the exercise of that broad discretion, contrary to the direction of the
Supreme Court of Canada in R. v. Adams [1996] 3 S.C.R. 101.

• Despite that First Nations do not own reserve lands, and Canada and the provinces have
yet to acknowledge Aboriginal Title including in its proprietary aspects, Bill S-11 allows
Canada to deem that First Nations own water systems, which allows for the resultant
liability for that ownership. Through Bill S-11 Canada attempts to eliminate its legal
liability, by transferring that liability to Bands and
reserve communities, for its failure to secure and
Through Bill S-11 Canada
protect safe drinking water for First Nations attempts to eliminate its legal
communities. This is a clear attempt by Canada to liability, by transferring that
liability to Bands and reserve
wash its hands of the liability which it has communities
incurred over years of neglect and failure to act to
protect and preserve safe drinking water supplies.

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• Bill S-11 gives Canada the power to commodify water and potentially impose fees for
drinking water absent the consent of the First Nation and without regard to the severe
poverty which afflicts many First Nation communities, already preventing people from
having adequate housing, nutrition and other basic needs, giving rise to the
apprehension that water will be another basic human right that First Nations may be
unable to afford.

• Provisions of S-11 could require that First Nations obtain permits for activities on
reserve which might impact on drinking water. Canada could also transfer this power
to the provinces, leading to a situation where use of reserve land could be constrained
by the need to acquire permission from Canada or the provinces for certain activities.

Summary
Bill S-11does not address the real and pressing difficulties that Indigenous communities
face and will not ensure safe drinking water. Instead, the regime imposed by Bill S-11 has
the potential to further fracture and damage the relationship between the Federal Crown
and First Nations, running roughshod over constitutionally protected rights and opening
the door to the application of provincial laws on reserve lands.

While the UBCIC agrees that there is a clear and

pressing need to ensure safe drinking water to First

Bill S-11 is a structurally and
constitutionally flawed piece of
legislation which will further
fracture the relationship between
the Federal Crown and
Indigenous Peoples, violate
Constitutionally guaranteed
Aboriginal Title, Rights and
Treaty Rights while not ensuring
safe drinking water for First
Nation communities.
Nation communities, Bill S-11 will not meet that
goal. Bill S-11 is a structurally and constitutionally
flawed piece of legislation which will further
fracture the relationship between the Federal Crown
and Indigenous Peoples, and violate Constitutionally
guaranteed Aboriginal Title, Rights and Treaty
Rights while not ensuring safe drinking water for
First Nation communities.

The UBCIC urges the Standing Senate Committee to

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recommend that Bill S-11 in its current form be abandoned and that Canada engage in a
joint process with First Nation communities and to work together to seek a solution which
will ensure safe drinking water. Any solution must include joint consideration of the
necessary financial and human resources and technical expertise required to ensure safe
drinking water in the long term, including source water protection and a commitment to
addressing broader environmental damage which impacts First Nations water supplies.

A successful solution to ensure safe drinking water to First Nation communities should be
driven by Indigenous communities, be based on the recommendations from the Expert
Panel on Safe Drinking Water and adhere to the principles set out in the United Nations
Declaration on the Rights of Indigenous Peoples.

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