November 16, Re: UBCIC Opposition to Bill S-11 in Current Form. Dear Minister Duncan,

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1 November 16, 2010 Honourable John Duncan Ministry of Indian and Northern Affairs 10 Wellington Street Gatineau, Quebec, K1A 0H4 Facsimile: Re: UBCIC Opposition to Bill S-11 in Current Form Dear Minister Duncan, We are writing to communicate strong opposition to Bill S-11, Safe Drinking Water for First Nations Act, in its current form; specifically we contest the potential of Bill S-11 to infringe on Title and Rights and Treaty Rights. Bill S-11 must be severely amended with direction given by First Nations, or abandoned. At our 2010 Annual General Assembly, the Union of BC Indian Chiefs-in-Assembly unanimously passed Resolution (enclosed) calling for action on Bill S-11 as currently written. In advancing work on Bill S-11, we call on you to uphold the United Nations Declaration on the Rights of Indigenous Peoples, which Canada endorsed on November 12, The Declaration 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 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. 1

2 We emphasize that as Indigenous Peoples we have a sacred relationship with water and that our rights to water are included in our Aboriginal Title, Rights, and Treaty Rights. Like you, the UBCIC believes that we must act to ensure that all First Nations have access to safe drinking water; however, Bill S-11 currently has severe structural impediments to achieving this end. The regulations set out in Bill S-11 will require significant financial and technical capacity, and the total cost is unknown- UBCIC is extremely concerned that there will not be adequate resources to support implementation of the regulations developed under Bill S-11. Additionally, Bill S-11 awards alarmingly extensive powers to Canada that clearly infringe on Title and Rights and Treaty Rights. We remind you that nearly all First Nations in BC enjoy unextinguished Title to their respective territories. From a regional perspective, UBCIC specifically contests the potential of Bill S-11 to infringe on Title and Rights, and Treaty Rights. It is unconstitutional for the federal government to implement unilateral changes on First Nations that continue to deny our inherent and legislated rights, even under the paternalistic guise that these changes are being done for health and safety. Water is an ongoing and high priority issue for First Nations in BC, and we have specific concerns regarding how the proposed federal regulatory framework on drinking water for First Nations intersects with current revisions to BC s provincial water laws. The Province of BC is modernizing its Water Act, the provincial legislation over water in BC, with the aim of passing legislation in Given the current uncertainty around BC s Water Act, we are extremely concerned about the authority granted to Canada by Bill S-11, to impose provincial laws. Bill S-11 currently provides Canada with authority and sole discretion to make any provincial law as amended from time to time, apply to First Nations as federal law with no role for First Nations. Of additional concern, are indications in the Bill that Canada may make particular provincial water allocation laws apply to First Nations. We adamantly contest the potential for currently un-known provincial water laws, determined without full consultation, to be unilaterally applied to First Nations in BC under Bill S-11. We highlight the following additional points of contention with Bill S-11: Failure of Crown to meet legal duty of consultation and accommodation in preparing and drafting Bill S-11. Bill S-11 will take precedent above all First Nations laws and by-law, which is in flagrant disregard and undermines powers First Nations have had under the Indian Act since 1951, and any authority First Nations have over water arising from inherent right of self-government. Bill S-11 says the Cabinet has authority to determine the extent to which the Crown may abrogate and derogate Treaty Rights- this is a direct contradiction of the Constitution. Canada will have authority to force First Nations into agreements with third parties to operate First Nation water systems. Canada will have authority to give judicial, legislative and administrative power to any person to carry out the Bill and regulations passed under it. Liability is on First Nation governments.

3 Canada will be able to deem a First Nation to be the owner of water systems that are not owned by a First Nation, with liability implications. Canada will have authority to determine fees payable for drinking water on reserve- no role is set out for First Nation governments or members. We advise you that the UBCIC is working with the Assembly of First Nations (AFN) and other like-minded Indigenous Nations and organizations on the issue of Bill S-11. By resolution, the AFN has requested that the Government of Canada provide adequate financial resources to each region in Canada to conduct a thorough impact analysis for each region. The AFN has suggested potential options such as the First Nations Water Commission, recommended by the Expert Panel on Safe Drinking Water. The UBCIC Chiefs-in-Assembly add their full support to the AFN s request and recommendation, and urge you to provide commitment for this essential work. Bill S-11 is currently unacceptable and clearly impacts on First Nations constitutional rights. We are aware that the bill is currently at second reading in the Senate- the UBCIC Chiefs-in-Assembly call on the federal government to either abandon Bill S-11 or severely amend Bill S-11 by incorporating input from First Nations as well as recommendations from the Expert Panel on Safe Drinking Water and a full impact analysis for each region. Further, the resource gap must be addressed before any regulations are implemented. We understand that you have publicly stated you are willing to work on changes to the legislation and would like confirmation of your commitment; without this, First Nations will likely continue strong opposition to Bill S-11. We look forward to your timely response. On behalf of the UNION OF BC INDIAN CHIEFS Grand Chief Stewart Phillip Chief William Charlie Chief Bob Chamberlin President Vice-President Secretary-Treasurer CC: Hon. Shelly Glover, Parliamentary Secretary to Minister of Indian and Northern Development Senate Committee on Aboriginal Affairs Senate Committee on Legal and Constitutional Affairs Senator Marjory LeBreton, Leader of the Government in Senate Senator James Cowan, Leader of the Opposition in Senate House Committee on Aboriginal Affairs Hon. John Slater, Parliamentary Secretary for Water Supply and Allocation (BC) Hon. Barry Penner, Ministry Aboriginal Relations and Reconciliation (BC) National Chief Shawn A-in-chut Atleo, Assembly of First Nations Regional Chief Jody Wilson-Raybould, BCAFN First Nations Summit Task Group UBCIC Chiefs Council 3

4 UNION OF BC INDIAN CHIEFS 42 ND ANNUAL GENERAL ASSEMBLY SEPTEMBER 15 TH - 17 TH, 2010 VANCOUVER, BC Resolution no RE: Action on Bill S-11, Safe Drinking Water for First Nations WHEREAS as Indigenous Peoples, we have a sacred relationship with water, and have exercised our inherent jurisdiction over water since time immemorial. Our rights to water are included in our Aboriginal Title, Rights, and Treaty Rights. Water is the source of all life, and we must act to ensure its protection and ensure that all First Nations have access to safe drinking water; WHEREAS the United Nations Declaration on the Rights of Indigenous Peoples states: Article 25 Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard. Article 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 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; WHEREAS on July 28, 2010, the United Nations General Assembly declared that safe and clean drinking water and sanitation is a human right to the full enjoyment of life and all other human rights; Certified copy of a resolution adopted on the 15 th day of September of 2010 in Vancouver, British Columbia Grand Chief Stewart Phillip, President Page 1 of 2

5 WHEREAS First Nations recognize that there is currently a crisis in drinking water in First Nations communities; in March 2010, 115 First Nations communities were under Drinking Water Advisories, and 49 First Nations water systems were classified as high risk; WHEREAS by Resolution , the Union of BC Indian Chiefs Council supports the right of a First Nation to protect their territory and the health of their community and directed the UBCIC Executive and staff to work with First Nations and/or like-minded Indigenous Nations who are actively involved in defending or working to protect this precious natural resource; WHEREAS Bill S-11 Safe Drinking Water for First Nations was introduced in Parliament on May 25, 2010, and stands to create a regulatory framework for First Nations drinking water, and will potentially infringe on Aboriginal Title and Rights and Treaty Rights; WHEREAS the regulations in Bill S-11 will require significant financial and technical resources to implement for each region, and the total cost is not known. First Nations are concerned that there will not be adequate resources to support the implementation of the regulations developed under Bill S-11; WHEREAS by Resolution 08/2010 the Assembly of First Nations (AFN) Chiefs-in-Assembly mandated the AFN to advocate that the Government of Canada provide adequate financial resources to each region to conduct a thorough impact analysis for each region, and directed the AFN to urge Canada that any further discussion on Bill S-11 be suspended until the estimated full economic impacts of this Bill are identified and presented to Parliament; THEREFORE BE IT RESOLVED that the Union of BC Indian Chiefs-in-Assembly direct the UBCIC Executive and Staff to work with First Nations and/or like-minded Indigenous Nations or organizations including the national Assembly of First Nations that are actively working to protect safe drinking water for First Nations; THEREFORE BE IT FURTHER RESOLVED that the Union of BC Indian Chiefs-in-Assembly call on the federal government to either abandon Bill S-11, or severely amend Bill S-11 by incorporating input from First Nations as well as the recommendations from the Expert Panel on Safe Drinking Water and a full impact analysis for each region; THEREFORE BE IT FINALLY RESOLVED that the Union of BC Indian Chiefs-in-Assembly direct the Executive to communicate opposition to Bill S-11 in its current form to the federal government, and specifically contest Bill S-11 s potential to infringe on Title and Rights and Treaty Rights. Moved: Chief Jonathan Kruger, Penticton Indian Band Seconded: Maureen Chapman, Proxy, Lew a:mel First Nation Disposition: Carried Date: September 15, 2010 Certified copy of a resolution adopted on the 15 th day of September of 2010 in Vancouver, British Columbia Grand Chief Stewart Phillip, President Page 2 of 2