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

Wisdom harnessed to technology can go a long way in creating a better social order, a world in which all creation can survive and enjoy life to the fullest.

Chief John Snow
These Mountains Are Our Sacred Places

Introduction

The Expert Panel on Safe Drinking Water for First Nations was established in June 2006 by the Minister of Indian and Northern Affairs with the support of the Assembly of First Nations. Our biographies appear as Appendix A.

The creation of the panel was one element of an action plan announced by the federal government that also included:

a protocol for safe drinking water for First Nations communities, covering a number of standards and requirements for drinking water systems;
mandatory training for operators, and a regime to ensure that all systems have the oversight of certified operators;
specific remedial plans for communities with serious problems and high risks; and
a commitment to report on progress on a regular basis.

This plan reflects pressures to increase drinking water safety that all jurisdictions in Canada have felt, following a water-related tragedy in Walkerton, Ontario, in 2000. Contamination of drinking water in that town led to widespread illness that resulted in seven deaths and ongoing illness for hundreds of residents. A subsequent inquiry by Associate Chief Justice Dennis O'Connor of the Ontario Court of Appeal did not just probe the causes, but also set out detailed recommendations on how to prevent a reoccurrence.

The federal plan also reflects issues that are specific to First Nations. The October 2005 evacuation of the community of Kashechewan, in northern Ontario, brought to national attention concerns about the water in this remote community. The evacuation came close on the heels of a report from the federal Office of the Auditor General which found that residents of First Nations communities did not benefit from a level of drinking water protection comparable to that of people living off reserves.

As an element of the federal plan, our mandate related to the relatively narrow, but important, aspect of regulation as a means of ensuring water quality. We were directed to consider the options for a regulatory framework for First Nations communities located on reserves. As the Auditor General report noted, no such framework exists at present. Efforts to ensure water quality rely mainly on a patchwork of policies, directives and funding conditions

The scope of our work was to:

review examples of regulatory frameworks and regimes from other jurisdictions and countries;
collect suggestions from stakeholders, through public hearings and written submissions; and
draft a paper for the Minister of Indian and Northern Affairs that would
- examine options for a regulatory framework;
- analyze the benefits and drawbacks of each option;
- indicate issues outside the mandate of the Expert Panel that would have to be addressed to implement the option; and
- provide a comparative analysis of all options.

Our analysis was to take into account the size of drinking water systems in First Nations communities and their geographic locations. While we were directed to include drinking water regulation in our analysis, it was left to us to decide whether to include wastewater systems in our discussion and analysis. We have chosen to do so.

Several matters were deemed to lie outside our mandate:

we were not to initiate discussions on or otherwise abrogate or derogate from Aboriginal or Treaty rights to water;
while we could consider how a regulatory framework might apply to self-governing First Nations, we were not to try to define water-related elements that should be included in future self-government agreements;
we were not to undertake the actual drafting or wording of any legislation that might follow from our report; and
we were not to address any internal federal government policy issues that might arise from our report.

We were asked to consider several issues without, however, addressing or resolving them, except that we might note in our analysis the problems caused by these issues. We might also recommend that further work be done to address them. These issues included:

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); and
implications of the on-going devolution of responsibilities and authority to First Nations.

Details of our terms of reference appear as Appendix B.

The engagement process

In response to the need to engage First Nations, we held a series of public hearings across Canada over the summer of 2006. We made it clear that this was not a broad consultation, but an effort to gain a better understanding of the existing challenges, possible regulatory directions, obstacles to effective regulation, and related issues that have an impact on water quality. To supplement the hearings, we also called for written submissions from interested parties. Those making presentations and providing submissions were asked to focus on the following questions:

What should be regulated: source water protection, training and certification of operators, drinking water quality, effluents, treatment, testing, wells, health protection, emergency preparedness, plant and system design, other?
What standards should be used?
What legal framework should be used: First Nations', federal, provincial, territorial?
What roles should various governments play in implementation?

Despite the very short notice for the hearings, the presentations and written submissions – the majority of which came from First Nations communities and organizations – provided us with valuable insights, experiences and advice on all of these questions. This speaks not only to the dedication of those working in the First Nations water sector, but also to the growing capacity within First Nations to plan, manage and operate their own water systems.

Over the course of the hearings we heard from more than 110 invited presenters. These comprised representatives from:

39 individual First Nations communities;
31 First Nations organizations, including tribal councils, regional councils, technical services associations, environmental and health organizations, and Assembly of First Nations regional offices;
the three federal departments most closely involved in funding and overseeing water and wastewater systems on reserves – Indian and Northern Affairs Canada (INAC), Health Canada and Environment Canada;
many of the provincial and territorial ministries with responsibility for drinking water standards and, in some cases, source water protection;
private sector organizations with in-depth experience in the First Nations water sector; and
non-governmental organizations with particular expertise in public-health, environmental or legal issues relevant to our mandate.

We should add that while officials of Public Works and Government Services Canada were not formally invited to present, they made themselves available at most of the hearings to answer questions.

We also received more than two dozen written submissions, most of which were from First Nations communities and organizations. Some of those who wrote did so because the short timelines had not allowed them to present, while others supplemented their presentations with additional thoughts and analysis. A number of further submissions were volunteered by other individuals and organizations.

At the time this report was completed, presentations and written submissions were available on the website of the panel.

These materials comprise a valuable cache of information, analysis and opinion not just on regulatory issues, but on all aspects of the First Nations water sector, and we urge INAC and the AFN to provide a long-term home for it on this site or elsewhere on the web.

As valuable as the hearings and submissions were to us, we must reiterate at this point that we do not regard our activities over the summer as a consultation process, but rather as the first step in engaging First Nations in the development of regulatory regime options. Now that the report is complete, the Minister of Indian Affairs and Northern Development will determine if and to what extent additional consultation with First Nations and other key parties will be required.

Quotes and examples

The text includes quotes from the transcripts of the panel hearings, with the aim of giving a flavour of the engagement process. Both the content and the opinions expressed in a quote are those of the speaker and have been selected from much longer and more detailed presentations. Where available, longer versions could be accessed through the website of the panel at the address provided above, at the time this report was submitted.

Longer sidebars are also included as examples of particular points. Every reasonable effort was made to ensure that these situations were presented as accurately as possible, within the time constraints of the reporting deadline.

Our thanks

To undertake even a cursory engagement process with the more than 600 First Nations in Canada and to gain a workable level of understanding of such a complex field as water quality on reserves over just a three-month period would not have been possible without the dedication and commitment of a large number of people. To the extent that our efforts will be helpful and the government's subsequent actions successful, a great deal of the credit must go to those who supported us.

First and foremost, we must thank the Assembly of First Nations and the regional offices of INAC and Health Canada for carrying a great deal of the logistical burden for the hearings. They helped to get the word out to all First Nations communities, suggest which could provide the most useful input for our mandate, and encourage presenters to come forward. In many places, the regional political or tribal councils, and other umbrella groups, greatly supplemented this help. We note that all of these organizations provided us with logistical support as well as producing excellent background materials and presentations themselves. We also thank the head offices of INAC, Health Canada and Environment Canada for initial briefings, and INAC for ongoing support over the summer.

The front-line perspective of regional INAC and Health Canada officials, with additional support from Public Works, was extremely helpful as we attempted to grasp all the complexities of the existing arrangements, as well as understand the options, in the short time available. In addition, we found that most of the private sector presenters were able to set aside their commercial considerations and provide background and advice that was both frank and illuminating.

Our legal team from Willms & Shier Environmental Lawyers LLP, aided by Professor Roderick A. Macdonald of McGill University and by the Department of Justice, helped us find our way through the legal maze surrounding questions of regulating water safety on and off reserves.

We also thank the elders and other First Nations members who provided opening and closing prayers for the hearings and contributed their wisdom and guidance.

We owe a huge debt of gratitude to First Nations individuals, whether elected officials or staff, from both individual communities and larger organizations, who took the time to prepare, present and submit their thoughts on regulatory options. If our work is to lead to a successful outcome, theirs is the perspective that must lead the process.

Our perspective

The foregoing comment about the importance of the First Nations perspective in this process leads to a final note about our own perspective. The membership of every successful expert panel must reflect a range of experience and viewpoints, and ours – a former deputy minister, a Cree grand chief, and an engineering professor in a school of public health – is certainly no different. Each of us brought to our discussions differing points of view, based on our own experiences. What was remarkable, however, was how seamlessly these perspectives generally meshed as we worked through each option.

A final note: it is as inappropriate, of course, to think of all First Nations as a homogeneous group as it would be to think of all of Canada's provinces and territories that way. To the extent that a First Nations perspective is woven into this report, it can only represent the small sample from our engagement process, as well as the experiences of a panel member who has been both an administrator and elected official in a First Nation. We have tried in the text to signal that any First Nation perspective is that of a particular group or individual and may not represent all First Nations in Canada.

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