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Water Today Title December 15, 2017

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Bill S-8 - The safety of drinking water on First Nation lands - 7/4/12

by Michel Ryan

The confusing nature of the government's current relationship with First Nations is exemplified in Bill S-8, "An Act respecting the safety of drinking water on First Nation lands." Bill S-8 is the second version of the Act and it recently passed 1st reading in the House of Commons prior to the summer break.

In an AFN report on S-8, Treaty 7 Grand Chief Charles Weaselhead was quoted describing the bill as "...a good first step, but regulations without capacity and financial resources to support them will only set up First Nations to fail ... We must address the capacity gap as well as the regulatory gap. The Safe Drinking Water for First Nations Act alone cannot and will not ensure the safety of First Nations drinking water." I am inclined to agree.

With the goal of facilitating safe drinking water on reserves, Bill S-8 grants extensive powers to the government of Canada to impose a strict regulatory regime, fines and penalties should it be flouted, and even the power to delegate any of the enumerated powers listed in the bill to a non-First Nations third party if desired.

One might naturally be concerned that a bill that grants such extensive authority might violate s. 35 of the Constitution by infringing upon or interfering with Aboriginal rights. To address such concerns, clause 3 of the bill states: "For greater certainty, nothing in this Act or the regulations is to be construed so as to abrogate or derogate from any existing Aboriginal or treaty rights of the Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982, except to the extent necessary to ensure the safety of drinking water on First Nation lands".

That was added after the Senate received comments from the Assembly of First Nations (AFN) National Chief expressing concerns that the bill violated certain s. 35 rights. For an earlier draft of the bill included amongst the powers to be granted to the government; the power to "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 (clause 4(1)(r))", which has now been struck out.

Whereas this earlier version of the bill contemplated and allowed for the government to interfere with s. 35 rights, the new version states that nothing in the Act should be construed as to interfere with those rights, unless the government feels it needs to.

How exactly this purports to fix the problem of interfering with First Nations' constitutional rights is beyond me. In effect, the Bill grants the power to impose regulations and First Nations have an obligation to comply despite there being no discussion in the bill as to how that compliance will be facilitated, financially or otherwise. If they fail to comply, the government is granted the power to impose any fines it sees fit, set the interest rate for those penalties, and delegate authority to any third party so that they can bring the band into line with the established regulations.

Bill S-8 certainly provides exhaustive authority to the government of Canada to deal with water issues on reserves, but it fails to live up to the promise of partnership that is supposed to exist between the Crown and First Nations in Canada. More to the point, the bill's approach does not strike me as one that will be particularly effective in dealing with the crisis of water access, which presently exists for many bands. Rather, I think it likely to foster greater tension. After all, it is no secret that many bands desperately need access to clean drinking water, making the issue, in my mind, one of provision more so than regulation. Having regulatory requirements to meet can only work as incentive if you have the resources to meet those requirements - so why not deal with that first?

But maybe I've got it wrong, after all we've been explicitly told not to construe any of this as meaning that any s. 35 rights will be violated. Even though the Supreme Court has clearly indicated that among s. 35 rights is an inherent right to self-government, even though the government of Canada has explicitly acknowledged this to be true, and even though Bill S-8 grants the department of Aboriginal Affairs extensive powers to impose rules and fines and third-party governance over the reserve's water infrastructure.

And we should be clear, constitutional rights are not absolute, everything in the Constitution is subject to limitations and the government can interfere with any right - BUT they have an obligation to do so sparingly and to justify those infringements when they are required.

Nothing in Bill S-8 addresses such a justification. The third clause, which insists the bill doesn't interfere with s.35 rights, tries instead to avoid that issue entirely, despite the fact that the bill clearly interferes with the right to self-government.

And if you doubt me on that note consider clause 7: "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." At the very least, Bill S-8 completely stacks the deck of jurisdictional powers in the government's favour, which again, would seem to contradict the notion that First Nations have a partnership with the government. Partners don't dictate terms to each other; they work things out together with mutual respect. I can find nothing about this bill that reflects that spirit.

Yet despite these serious problems inherent in Bill S-8, chances are that my perspective will be accused of sowing discontent. The idea that I'm more eager to complain than work towards solutions is a serious concern but not a justified one. I am simply of the mind that you don't fix one problem by perpetuating another. You don't address the obligation for every member of our society to have access to clean drinking water by violating other obligations under the Constitution.

Unfortunately, this kind of confusing dichotomy is inherent in many of the legislative efforts coming from the government of Canada with respect to First Nations issues. There are many people who feel these contradictions will continue until we take meaningful steps to establish jurisdictional clarity, to honour the Constitution and the treaties, and to establish a third pillar of government alongside the Federal and Provincial powers. That's what the Constitution requires, and until it is realized, we're going to keep seeing bills that, despite having good intentions, pursue their goals by violating s. 35 of the Constitution.

Michel Ryan

You can access the text for Bill S-8 at

A useful summary of the earlier version of the bill, (S-11) can be found here:

The AFN's Submission to the Senate's Standing Committee on Bill S-8 can be found here:
http://www.afn.ca/uploads/files/water/senatestandingcommitteebill_s-8.pdf (from which the quote from Grand Chief Weaselhead was taken)

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