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Results: 1 - 15 of 495
View Chris Warkentin Profile
CPC (AB)
Colleagues, I want to thank you for being here this morning. We are continuing our consideration of Bill S-8 today in this 76th meeting of Standing Committee on Aboriginal Affairs and Northern Development.
Today we are joined by departmental officials who will be here for our assistance if necessary. Feel free to turn to them if in fact there is a question that they might be able to help you with as it relates to the consideration of the legislation we have before us.
If our officials will introduce themselves, we'll do that and then get into clause-by-clause.
Jamie Lafontaine
View Jamie Lafontaine Profile
Jamie Lafontaine
2013-05-30 8:46
I'm Jamie Lafontaine, program manager in the environmental public health division, Health Canada.
Karl Carisse
View Karl Carisse Profile
Karl Carisse
2013-05-30 8:46
Good morning. I'm Karl Carisse. I'm senior director with Aboriginal Affairs in the community infrastructure branch.
Andrew Ouchterlony
View Andrew Ouchterlony Profile
Andrew Ouchterlony
2013-05-30 8:46
I'm Andrew Ouchterlony, Department of Justice, in the legal services unit at Aboriginal Affairs and Northern Development.
View Chris Warkentin Profile
CPC (AB)
Thank you for being here this morning. We appreciate your willingness to join us.
Colleagues, pursuant to the order of reference of Wednesday May 8, 2013, we'll now proceed to the clause-by-clause consideration of Bill S-8, an act respecting the safety of drinking water on first nation lands. Pursuant to Standing Order 75(1), consideration of clause 1, which is the short title, and the preamble are postponed.
We'll move on to clause 2, where some amendments have been proposed. We can only consider this if.... The amendments to the interpretation section of this bill can occur only if amendments have been adopted to warrant amendments in this part of the bill, so we will deal with clause 2 after we deal with the consideration of the schedule.
(On clause 3—Aboriginal rights)
The Chair: We'll move to clause 3, where we have amendments NDP-1 and Liberal-1. These amendments are identical. We'll turn to NDP-1. If NDP-1 is adopted, we will obviously not hear from Liberal-1. If NDP-1 is defeated, Liberal-1 will be also.
Jean.
View Jean Crowder Profile
NDP (BC)
Thank you, Mr. Chair.
With amendment NDP-1, what we're doing is actually turning clause 3 into a true non-derogation clause by removing this line: “except to the extent necessary to ensure the safety of drinking water on First Nation lands”.
I want to refer back to the brief provided by the Canadian Bar Association. I want to read into the record their statement on this. They say:
We believe that the qualification “except to the extent necessary to ensure the safety of [the] drinking water on First Nation lands” is in itself an explicit abrogation or derogation of existing Aboriginal or treaty rights pursuant to section 35 of the Constitution Act, 1982. The qualification in section 3 of Bill S-8 does not, in our view, ameliorate the constitutional problems identified in our earlier submissions on Bill S-11.
We have been unable to find any precedent or explanation for this proposal which would still, in our view, abrogate or derogate from section 35 rights under the Constitution Act, 1982 in order to provide safe drinking water to First Nations. This provision raises two key issues:
[I]s it necessary to implement the objectives of the bill?
[I]f so, is it constitutionally valid? Can Parliament use its legislative power under section 91(24) to abrogate or derogate unilaterally from the rights protected by section 35?
The attempt to abrogate and derogate aboriginal and treaty rights by statute or regulation would set a dangerous precedent and should not slip by without full explanation and discussion.
Mr. Chair, I encourage all members to support this amendment.
View Greg Rickford Profile
CPC (ON)
View Greg Rickford Profile
2013-05-30 8:50
Thank you.
I appreciate my colleague's input on this matter. The non-derogation clause included in Bill S-8 addresses the relationship between the proposed legislation and the protection of aboriginal and treaty rights under section 35 of the Constitution Act, 1982. This clause specifically excludes from its scope any derogation or abrogation that is necessary to ensure the safety of first nations' drinking water.
Under Bill S-8, to be clear, a regulation could be created to limit activities on first nation lands around sources of drinking water in order to reduce health and safety risks of first nations being exposed to contaminated water. Thus, in the regulations, the rights of first nations to use land in certain ways may need to be infringed in accordance with the Supreme Court of Canada test for justification.
If this clause were changed to a non-qualified non-derogation clause, as has been proposed, it may restrict the protection of source water on reserves. As demonstrated in previous Supreme Court rulings, legislation can validly affect the exercise of aboriginal rights if it meets the test for justifying interference with a right. That was set out in R. v. Sparrow. Including this non-derogation clause is meant to support the objectives of the bill, and in particular, the protection of source water on reserves.
Thank you, Mr. Chair.
View Carol Hughes Profile
NDP (ON)
Thank you.
In support of our amendment, I'd like to refer you back to the Canadian Bar Association.
They specifically said:
While the wording about section 35 of the Constitution Act, 1982 in the previous Bill S-11 has been revised, section 3 of S-8 remains problematic. We believe that the qualification “except to the extent necessary to ensure the safety of the drinking water on First Nation lands” is in itself an explicit abrogation or derogation of existing Aboriginal or treaty rights pursuant to section 35 of the Constitution Act, 1982. The qualification in section 3 of Bill S-8 does not, in our view, ameliorate the constitutional problems identified in our earlier submissions on Bill S-11.
Then it goes on.
Obviously, this is coming from the Bar Association. Maybe the legal representation would like to comment on this as well.
View Carol Hughes Profile
NDP (ON)
Well, in regard to the current wording in the proposed legislation in this particular clause, I'm just wondering whether the department agrees that this is a problematic area, given that the Bar Association has defined it as that.
Do they agree with the Canadian Bar Association?
Karl Carisse
View Karl Carisse Profile
Karl Carisse
2013-05-30 8:53
I think it could help if we give an example of why the clause is written that way.
If we look at the situation that unfortunately happened in Walkerton, it was cattle grazing near the community's wellhead that led to E. coli in the water source. That's what contaminated the water. Now, there were a bunch of issues afterwards with the operations and the operators as to why there was some contaminated water that went to the community, but that's the root of the issue of what happened in Walkerton. This is what with this clause we're trying to prevent in any community.
Maybe there is a certain perceived aboriginal right—we'll take that example—for cattle to graze or for a homeowner to have that cattle graze near the community wellhead, but it makes a lot of sense for health and safety to ensure that there's a certain limit around the wellhead where you wouldn't have that activity being done.
This is simply to replicate what exists off reserve right now in regulations. There are regulations that state that for a certain number of feet around a community's wellhead, you're not allowed to use the land for certain purposes. Without that last part of that clause, we may be stuck in a situation where that would actually happen. We have to remember that this will not be done unilaterally. We're going to work with first nations to develop the regulations. This gives us the power while we're negotiating the regulations to give that specific instance to protect source water, just for the safety of the community.
View Jonathan Genest-Jourdain Profile
NDP (QC)
Mr. Chair, I have a simple comment to make.
Associating the blame for a threat to safe drinking water with the exercise of existing rights or treaty rights under section 35 of the Constitution Act, 1982, is questionable. In fact, we know that the real threat is much more rooted in natural resource extraction initiatives, which at the end of the day, indigenous nations are not very interested in. I have my doubts about this because it suggests there could be a threat associated with the exercise of ancestral or treaty rights.
I submit that.
View Carol Hughes Profile
NDP (ON)
Just on that note, again, would you clarify whether or not...? Because they indicate that it abrogates and derogates from section 35 the rights under the Constitution Act of 1982.
If it does, is this section, as worded, actually constitutionally valid?
Andrew Ouchterlony
View Andrew Ouchterlony Profile
Andrew Ouchterlony
2013-05-30 8:56
I'd like to start by mentioning that this issue is complicated by the fact that no courts have been asked to decide or interpret a non-derogation clause. We're in that situation. However, in answer to your question, this clause is an interpretive provision rather than a substantive provision.
The idea that the clause abrogates or derogates itself, I would not agree with that understanding of it. It is meant to be used as an interpretive tool. If a court were asked about a provision in the regulations, for example one that restricted an activity on reserve lands, and if that were challenged, this clause could be used to help the court try to interpret the relationship between that regulation, that provision, and the constitutional protection in section 35.
Federal legislation cannot reduce the protection that is provided by the constitution. What this clause is meant to do is preserve and continue to allow the government, if a claim is made against a regulatory provision, to continue to make arguments as to why that infringement, if it's been determined there's been an infringement, is justified.
Essentially it's to preserve the common law, which was mentioned, the Sparrow test for justification. There are differences in understandings and the department has a different understanding from what's presented by the Canadian Bar Association.
View Chris Warkentin Profile
CPC (AB)
Thank you very much. I'm not seeing any additional speakers to NDP-1, so we'll now vote.
(Amendment negatived [See Minutes of Proceedings])
The Chair: As a result, Liberal-1 fails.
Moving on to a vote on clause 3.
(Clause 3 agreed to)
The Chair: There's been a proposal for NDP-2. This is under new clause 3.1, maybe Ms. Crowder would like to move that.
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