Report of the Expert Panel on Safe Drinking Water for First Nations
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Appendix B. Details of the Terms of Reference
(Note: some details relating to logistical and process matters have been removed)
The Government of Canada, with the support of the Assembly of First Nations, has established a panel of experts on First Nations water which will examine and provide options on the establishment of a regulatory framework for ensuring safe drinking water in First Nations communities.
Objective of the Expert Panel
The Expert Panel is to provide an options paper which will examine regulatory framework options to ensure clean safe drinking water in First Nations communities.
For each option, the Expert Panel must provide an analysis of the benefits and drawbacks of the option in question, and indicate issues that may have to be addressed outside of the mandate of the Expert Panel to be able to implement the option. Finally, the Expert Panel should also provide a comparative analysis of all the options.
To accomplish this goal, the Expert Panel will review examples of regulatory frameworks and regimes from other jurisdictions and countries, while taking into account their applicability to communities of similar size and location to First Nations communities. The conclusions and experience gained from reviews of these other examples of regulatory frameworks should be useful in the analysis of the options that will be provided by the Expert Panel.
In addition, the Expert Panel will engage First Nations Chief and Councils, as well as other stakeholders including, but not necessarily limited to, First Nations technical organizations, First Nations water and wastewater system employees, regional and national federal employees such as Environmental Health Officers and Indian and Northern Affairs regional field staff, and provincial and territorial governments. The purpose of this engagement process will be to collect suggestions as to options for establishing a regulatory framework for ensuring safe drinking water in First Nations communities. The Expert Panel hearings will be the first step in engaging First Nations in the development of regulatory regime options. The Minister of Indian and Northern Affairs Canada will determine if and to what extent additional consultation with First Nations and other key stakeholders will be required.
All suggestions provided by First Nations and other stakeholders should be duly considered by the Expert Panel when creating the options paper. In addition, all presentations and submissions should be kept on record and be made publicly available.
Mandate of the Expert Panel
The mandate of the Panel of Experts is to provide options for a regulatory framework for ensuring safe drinking water in First Nations communities. The Expert Panel will wish to consider options and recommendations that at a minimum address the following aspects of a regulatory framework:
- Roles, Authority, and Accountability
- First Nations governments
- Indian and Northern Affairs
- Health Canada
- Environment Canada
- Others (provincial governments, etc.)
- Standards
- Source water protection
- Drinking water quality
- Monitoring and inspection
- Operation and maintenance
- Operator training and certification
- Design, construction, and building
- Emergency Response
- provide a comparative analysis of all options.
- Approval Process
- Facility permits and licences
- Environmental assessment process
- Operator certification process
- Enforcement
- Enforcement agencies and authority
- Information sharing between responsible parties
- Fines and penalties for non-compliance
- Oversight and follow-up
- Public Involvement
- Public reporting
The above regulatory framework areas should be examined for all aspects of drinking water treatment and the provision of drinking water in First Nations communities. The Expert Panel will have to decide the applicability of also covering these aspects for wastewater treatment, and indicate in the options paper their reasoning for their decision. The analysis of the Expert Panel needs to be appropriate to the size and geographical location of drinking water systems in First Nations communities.
As a special consideration, municipal wastewater effluent quality standards are currently being developed nationally in a Canada-Wide Strategy initiated by the Canadian Council of Ministers of the Environment, and will be implemented equally nationally as a regulation under the Fisheries Act. A separate consultation process with First Nations regarding these regulations will be undertaken by Environment Canada. It should be noted that only the wastewater effluent quality will be regulated under this initiative; all other aspects of wastewater treatment, such as operator certification, wastewater treatment plant licensing, etc., will not be covered by the new regulations and the Expert Panel may provide recommendations regarding those aspects.
Source water protection is featured as a central pillar of the planning and management of all drinking water supplies on federal lands/facilities including First Nation communities. Careful consideration must be given with regard to source water protection as it is a multidimensional issue, often crossing jurisdictional boundaries and including both voluntary and regulatory controls.
Another consideration for the panel should be how the proposed regulatory framework options apply to individual systems, i.e., privately owned wells and septic systems. They may wish to consider issues such as regulating the construction and decommissioning of privately owned individual wells and septic systems, as well as other aspects that are normally covered by regulations in other jurisdictions.
The following aspects will be outside the mandate of the Expert Panel:
- Aboriginal or Treaty Rights on Water: The Expert Panel is not to initiate discussions or otherwise abrogate or derogate from Aboriginal or Treaty rights to water. The Joint Steering Committee will review the implications of the Experts Panel work in the context of Aboriginal and Treaty Rights as recognized in section 35 of the Constitution Act, 1982.
- Self-Government Agreements: Consideration should be given with respect to how a safe drinking water regulatory framework, including any regulatory regime, might apply to self-governing First Nations. However, it is not within the mandate of the Expert Panel to attempt to change any self-government agreements, nor to attempt to define water-related elements that should be included in future self-government agreements.
- Drafting of Legislation: The purpose of the Expert Panel is to provide options to the Minister for a regulatory framework for safe drinking water. The actual drafting and wording of any legislation that may be required is beyond the mandate of the Expert Panel. The Minister will develop a consultation strategy if necessary and will determine, as required, the adequate process and timeline.
- Federal Water Policy: The purpose of the Expert Panel is to establish options for a regulatory framework to help ensure safe drinking water in First Nations communities. The Federal Government will address its own internal policy issues with respect to any new regulatory framework that results from the options paper of the Expert Panel.
There are also several issues related to the implementation of the various options considered in the regulatory framework that should be considered by the Panel in its analysis. Although the Expert Panel may present the problems caused by these issues through their analysis of the options and recommend that further work be done to address them, it is not the role of the Expert Panel to resolve or address these issues. Such issues include, but are not necessarily limited to:
- Human, financial and infrastructure resources required by First Nations to implement the regulatory framework
- Indian and Northern Affairs policy not to fund private, individual systems (wells and septic systems)
- Implications of the on-going devolution of responsibilities and authority to First Nations
The final decision as to the selection of the preferred option will rest with the Minister of Indian and Northern Affairs Canada.
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