Report of the Expert Panel on Safe Drinking Water for First Nations

II. Challenges and complexities

Our mandate stressed the need to take into consideration the size and location of First Nations water and wastewater systems as we assessed regulatory options. This is a very important point, because these factors create major challenges in running water systems safely and efficiently.

Not all of the challenges for First Nations water and wastewater systems arise from community size and location, however. The operating and governance context surrounding all First Nations activities is highly complex, as is the legal environment.

Taken together, the challenges and complexities have unquestionably contributed to the current situation, in which too many reserve communities are considered at risk because of water problems, and many have had boil water advisories for months or even years.

Most systems are small and many are remote

Jeff Craddock, Technical Services Advisory
Group

...look after the water plant, move down, look after the wastewater plant, jump on the water truck delivery, check cisterns, go out to the lagoon, catch a dog and fix two furnaces by the end of the day. ... that's what a lot of the First Nation [operators] are expected to do.

The majority of First Nations water systems are in small communities, and small size alone is a known risk for water systems.

In addition, a large number of communities are in remote locations. Roughly one in seven can be reached only by water or by a combination of air in summer and snow roads in winter. The total population of these "special access communities" is more than 65,000 people.

For these reasons, most First Nations water systems share the problems facing all small, remote systems:

Capital and operating costs for each connection are high;
It is hard to find, train and keep qualified operators;
Exploiting the economies of scale that can save money and reduce risks by consolidating systems is usually impossible where capital is concerned, and very difficult where human and other resources are concerned, because of travel distances;
Getting emergency help and supplies during crises is difficult, slow and costly;
Many community members resist the idea of treatment, because they do not like the taste of chlorinated water and have drunk untreated water in the past without apparent harm; and
Capacity to manage and govern the system is often a concern.

In addition, many small communities have source water that is scarce, hard to treat, or both.

It should be stressed that the problems listed above are common to virtually all small and remote systems, not just those on reserves. In addition to these problems, however, systems on reserves face additional, significant challenges.

Many players are involved

At present, within the federal government sphere, four departments are directly involved in First Nation water and wastewater matters:

INAC funds the capital costs of plants and piped systems, and a portion of their operating and maintenance (O&M) costs, enforces certain standards through funding agreements and will soon resume its earlier role of providing engineering advice and approvals;
Public Works and Government Services Canada assists with procurement and, for now, provides engineering advice and approvals;
Health Canada ensures the delivery of drinking water monitoring programs on reserves south of the 60th parallel, either directly or in an oversight role; and
Environment Canada Environment Canada is involved in source water protection through its powers to regulate wastewater discharge into federal waters or into water generally where water quality has become a matter of national concern, and to enforce effluent discharge standards into water throughout Canada.

Within the First Nations sphere, there are also several authorities involved in providing water and wastewater services:

Chief and Council generally govern the management and running of systems, and have the power to enact resolutions to protect water;
Technical service advisory groups may be responsible for training operators and preparing them for certification exams, as well as providing one-on-one help and advice on site; and
Regional councils (such as tribal councils), or separate environmental health organizations may be involved in water monitoring programs and in public health matters generally.

With the exception of the first item – the role of Chief and Council – these roles vary from region to region. Examples include the joint operation by a group of tribal councils of a health authority that deals with water monitoring; or giving the responsibility for training to a tribal council.

Simon Osmond, Atlantic Policy Congress

Various federal agencies are not clear on their own responsibilities now. Uncertainty means that enforcement actions tend to be directed at both First Nations and INAC. The fingerpointing that accompanies these situations is not helpful in resolving urgent issues. As a matter of public safety, this ambiguity of roles and responsibilities is unacceptable and it needs to be addressed as part of a regulatory change.

One critical element of managing drinking water risk – the legal authority to issue boil water advisories or orders, and to close plants in emergencies – does not appear as a responsibility of any of the First Nations or federal bodies listed above. In practice, various parties are involved, but there is neither a clear chain of responsibility nor specific legal authority for these decisions.

Other governments are also involved in First Nations water and wastewater issues, but again without consistency across the country.

The most notable difference, in northern Canada, is that territorial governments have jurisdiction over almost every aspect of First Nations water and wastewater systems within their boundaries, except where this has been superseded by a land claims agreement. Provincial governments, in contrast, generally have no regulatory role on reserves, but this is subject to a number of exceptions and caveats:

In some provinces, the authority of a provincial medical officer of health to declare boil water advisories or orders may be accepted de facto on reserves.
Several provincial authorities consider that they have the power to enforce water-related and environmental regulations against private businesses on reserves, but do so only at the invitation of the community, or with the agreement of the business owner, or when the activity has impacts off-reserve – or not at all.
Alberta has recently asserted jurisdiction over water takings on reserve, but this is strongly disputed.
In the extreme case of the First Nation community of Kashechewan, in northern Ontario, the provincial government undertook an evacuation for water-related reasons, in part because of confusion over the roles of various other parties in an emergency. The federal government subsequently paid the costs, under a long-standing agreement with the province regarding emergency evacuations.

There may also be involvement at the municipal level. Representatives of First Nations may sit on a regional body including local municipalities that deals with watershed protection. In many places, First Nations communities supply water to local municipalities from their plants, or get their water from a local municipality.

The involvement of so many different players and the lack of clear authority in many areas lead inevitably to a complex policy and governance environment for First Nations. It is quite possible to imagine that differing authorities are likely to have different, even diverging, interests.

Comparability is not supported by funding

We have made the case that adequate resources – for plants and piping, training and monitoring, and operations and maintenance – are more critical to ensuring safe drinking water than is regulation alone.

For this reason, it is important to look at both the intention and the record of funding policy for water and wastewater systems.

Federal policy for the general standard of living on reserves was laid down in 1977, in a memorandum to Cabinet that proposed an expanded infrastructure program for Indian reserves. At the core of its strategy was the intent "to provide Indian homes and communities with the physical infrastructure that meet commonly accepted health and safety standards, is similar to that available in neighbouring, non-Indian communities or comparable locations, and is operated and maintained according to sound management practices." Subsequent Cabinet decisions, and the actions of minister and public servants, have been shaped by acceptance of this strategy.

In the area of water and wastewater, we see three problems relating to the stated objective of the comparability strategy.

First, the federal government has never provided enough funding to First Nations to ensure that the quantity and quality of their water systems was comparable to that of off-reserve communities.

For example, in the five-year capital plan covering 2002-07, INAC officials acknowledge that the federal government's estimates of the capital needed to invest in First Nations water and wastewater systems turned out to be one-third to one-half of what was actually needed. This was in part because the estimates were based on a Level of Service Standard (LOSS) of 180 liters per person per day. This figure, long used by the federal government for reserve systems, is below actual use. A norm of 450 liters per person per day is used in planning municipal systems in Ontario. As well, the estimates did not take into account higher-than-expected increases in construction costs and increasing water-quality standards over the five-year period.

The result, going into the next planning cycle, is a known gap between what was spent and what was needed. The gap may widen over the next five-year plan, unless the federal government significantly strengthens its funding commitment. While the estimates are only being developed now, significant risks and cost pressures are already known:

INAC's $150-200 million estimate of the cost of bringing sewage treatment for reserves up to the level of federal guidelines set in 1976 seems unrealistically low;
The estimate does not reflect the added costs of higher effluent standards that will likely follow from the work of a current federal-provincial-territorial committee on wastewater treatment;
While there is an estimate of $16 million, developed by Health Canada, to meet more stringent standards on arsenic in drinking water, this amount may be unrealistically low; and
No estimates were provided for the upgrade costs of several other new standards in the works.

Second, it is difficult to find nearby non-First Nation communities that are comparable to some of the smallest and most remote reserves. The costs of providing service in these communities that is comparable to that available in off-reserve communities is almost certainly going to be very high. The federal government must accept that comparable, in this case, should be understood as comparable in quality, not in cost.

Third, there is evidence that the resources provided in the past were not put to the most effective use. We discuss this further in the next chapter.

In summary, the federal government has not yet met the intent of the comparability policy.

Devolution demands resources

A general policy direction of the past several years that also has an impact on water and wastewater systems is the recognition of the ability of First Nations to govern themselves. As a result, many responsibilities have been devolved to First Nations and their organizations. An example in the water sector is water quality monitoring. This was previously the sole responsibility of Health Canada; it is now shared in most regions, with First Nations having the main responsibility in some.

The final step in this policy direction is, of course, self-government. Seventeen selfgovernment agreements are already in place and more are being negotiated. We observe that self-government legislation generally does not enable self-governing First Nations to operate a modern water and wastewater management regime. The several acts are inconsistent with one another and with the regimes of the provinces in which the First Nations are located.

While the First Nations participants we heard from uniformly favoured the concept of greater autonomy, they were also concerned about the resources available to carry out devolved programs.

The gaps and uncertainties that characterize the current situation underline the importance of understanding the bigger picture – the historic legal and legislative context – before undertaking any effort to improve the safety of drinking water on reserves.

Law and history

The collision of cultures and legal traditions over the years since European settlement began has left a vast and somber story that cannot be adequately summarized here. Its conclusion, for the purposes of this report, is the need for policy and legislation to take account of the constitutionally protected rights of First Nations.

The Royal Proclamation of 1763 commanded the administrators of Britain's North American colonies to "treat with" the Indians before opening the land to European settlement. From this beginning, in Canada, came the 19^th-century treaties, the recognition of aboriginal rights, the modern treaties in Quebec and the territories, and the current treaty process in British Columbia. Both the Proclamation and the subsequent treaties are constitutionally protected documents. Only in New France, do legal scholars assert, were aboriginal rights extinguished utterly – by the King of France, before 1759.

Section 91(24) of the Constitution Act 1867 granted the Canadian federal government exclusive power to legislate in relation to "Indians and lands reserved for Indians." The key statute under this power for most of post-Confederation history has been the Indian Act, a sweeping and infrequently amended law which leaves the federal government inextricably involved in many aspects of First Nations life – not as a distant policy maker and law enforcer, but as an intimate partner and fiduciary.

All of this history means that the experiences of other countries are of limited value, since their legal and constitutional basis for action is completely different. In the United States, as an example, the Royal Proclamation was in force only for a few years before the Revolution. The Supreme Court of the infant republic, in a judgment in 1832, defined US tribes as "dependent, domestic nations," with a degree of surviving autonomy that was wholly subject to the will of the Congress. In practical terms today, this means that the Environmental Protection Agency has by far the largest role in water management on reservations. Only in the exceptional case of the Navajos, with 200,000 people on a reservation of 27,000 square miles – larger than ten of the states – has the EPA authorized a tribe to implement water management, within federally set standards.

In law, at least, Canada grants far more jurisdiction to its First Nations. This provides a useful basis on which to start to consider a regulatory regime. Before proceeding any further in that direction, however, it is helpful to have a better sense of the First Nations perspective on "jurisdiction."

Among the Cree, for example, being given or giving up "jurisdiction" or "ownership" through treaties may well have been inconceivable, because both of these were alien concepts imported through European law. Many believed that the treaties were a way of sharing the lands and the waters. Even today, when Cree elders speak of how traditional territories were regarded, it was never in the sense of exclusive ownership or power to act. Where there were overlaps, rights and responsibilities were shared. This led naturally to a strong, continuing belief that all parties must work together and in consultation with one another where stewardship of lands and waters is concerned.

Canadian law and policy have been moving more toward embracing these concepts in the name of respect, reconciliation, and fairness all around. Legislation affecting First Nations' rights, federal responsibilities, and "the honour of the Crown" must now be undertaken carefully and in respectful consultation with the affected parties. The specific measures depend on the degree to which the contemplated laws may impinge on often ill-defined treaty and aboriginal rights.

In the present context, a policy framework for water management on reserve touches on a number of collective rights of basic importance, notably the right to self-government and the relation to on-reserve lands and waters.

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