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

IV. What would be regulated, and how

If there is to be regulation of water quality on reserves, then the comprehensive framework set out in the Walkerton Inquiry Reports provide a useful benchmark. A successful regime for reserves would require certain additional elements. On the other hand, some of the features in the Walkerton Inquiry Part 2 Report, notably the financial ones, cannot be implemented in the unique circumstances of First Nations reserves.

The first section below sets out the elements of a comprehensive water regulation framework of the type that should apply to First Nations. These need not all be put in place simultaneously.

The discussion of the elements of a framework includes suggestions as to which jurisdictions might be looked to for examples of good practice. Volume II and Appendix C to this volume provide more detail about the water regimes of Canadian jurisdictions.

This chapter then examines special considerations relating to First Nations around four elements of a regulatory framework: individual systems (including wells and septic fields), water withdrawals and use, drinking water source protection, and occupational health and safety. It concludes by discussing how an effective regulatory regime for First Nations might be designed.

Elements of a regulatory regime

Roles and Responsibilities

Any well-designed regulatory regime sets out clearly and precisely the roles and responsibilities of all parties involved. For First Nations, coverage of roles and responsibilities would certainly extend to the relevant federal departments and First Nation governments. The role of medical officers of health, particularly in emergencies, would need to clothed in legal raiment. (This might equally be achieved through a First Nations public health act of the type the AFN has called for.) Any other parties involved, such as provincial governments or a new federal body with a regulatory role, would also need to be covered.

Coverage

A regulatory framework should apply to all four elements of water and wastewater systems: drinking water treatment and distribution, and sewage collection and treatment.

Non-piped water delivery systems

In non-urban, low-density areas, water is often distributed by tanker truck and stored in individual tanks or cisterns. Regulations governing some aspects of such systems have been developed in New Brunswick, Northwest Territories, Yukon, Quebec and Saskatchewan.

Wells for individual service

Most jurisdictions have some regulations governing wells for private water supply, but the emphasis of these requirements is on drilling and construction, and occasionally decommissioning, of a well. Regulation is provided in some detail in such jurisdictions as British Columbia, Manitoba, New Brunswick, Ontario, Prince Edward Island and Quebec. Regulations governing original well site selection on the basis of a risk assessment and safe operation of wells for individual water service are not evident. The siting, design and servicing of cisterns, septic tanks and percolation fields is inadequately covered; what guidance is provided is often in building codes.

Water withdrawal and use

Explicit regulation governing the rights for withdrawal and use of water from surface and groundwater sources is provided in a number of Canadian jurisdictions including Alberta, British Columbia, Manitoba, Newfoundland, New Brunswick and Ontario.

Operator certification

Operator requirements include certification of water and wastewater operators. Provincial certification requirements such as those of Alberta and Ontario are well established and can be supported by successful training initiatives such as the circuit rider training programs. The certification processes adopted by Quebec for remote communities address some unique challenges for these situations.

Monitoring

Monitoring covers water quality and treatment performance, including source water, process performance, treated water and distribution system quality. It also covers quality standards: chemical, microbiological, physical and esthetic parameters.

Compliance monitoring (monitoring treated water against standards) is well established in most provincial regulatory regimes. Process performance monitoring is also required to varying degrees in provincial regulatory operating approvals. Requirements for more comprehensive and strategic monitoring are not currently well defined in regulatory programs, but international initiatives (e.g., Australian Cooperative Research Centre for Water Quality and Treatment [13]) are currently preparing guidance on this need.

On quality parameters, the Guidelines for Canadian Drinking Water Quality are endorsed by a federal/territorial/provincial committee representing all Canadian jurisdictions except First Nations. Individual jurisdictions differ in terms of how they make use of the numbers. There is not any evident need for differing numbers to be developed as long as the numbers are used as guidelines. If all these water quality numbers were adopted as enforceable standards, there may be a need to consider variation to meet local needs for some values, such as total dissolved solids, that are more esthetic than health-based.

Enforcement

The most detailed inspection, investigation and prosecution program related to water facilities is now found in Ontario. Other provinces have specified varying degrees of detail regarding their powers of inspection. Careful consideration of the most effective ways of enforcing regulations on First Nations communities to emphasize prevention rather than penalty will need to be developed.

Appeals mechanism for regulatory decisions

Alberta, British Columbia and Ontario provide administrative tribunals that hear appeals of approvals, orders, or administrative penalties. Appeals may be brought by the regulated community or others affected by the decisions of the environmental regulator. These tribunals, which are quasi-judicial bodies, provide a mechanism to assure some checks and balances with appropriate public involvement surrounding regulatory decision-making.

Reporting

Reporting of adverse results and operating performance is covered to varying degrees in provincial regulatory systems. Reporting water quality for consumers is a relatively new feature that is not well defined in current regulatory systems in Canada but is a key part of U.S. regulations and is supported by the principal professional organization, the American Water Works Association.

Design approvals

Approval of the design of facilities is required under the regulatory systems for most jurisdictions in Canada, with many of the basic concepts derived from detailed approaches to regulating water treatment developed by the U.S. Environmental Protection Agency. Alberta has published detailed design standards as guidance for their approval process. New Zealand has pioneered an approach to defining facility needs, particularly for small systems, based on public health risk management plans. New drinking water legislation introduced in 2006 in New Zealand will require the use of these plans for all community facilities. [14]

Operating approvals for water and wastewater facilities

All provincial jurisdictions in Canada require some form of permit or operating approval to run community water and wastewater systems. The details of operating requirements vary from one jurisdiction to another and may also vary with facility size.

Procurement, construction and commissioning

Explicit provisions governing procurement, construction and commissioning of water and wastewater facilities are not currently evident in the regulatory programs of Canadian jurisdictions but the importance of these issues, particularly for remote communities, may warrant developing some administrative guidance to accompany regulations.

Emergency planning and response

Most provincial jurisdictions make reference to contingency planning and requirements for backup of critical systems (including power). Explicit requirements for developing an emergency response plan for water and wastewater facilities are specified in Alberta, British Columbia and Manitoba. It is in these most stressful of circumstances that clearly specifying the roles and responsibilities of various actors is most crucial, and a good regulatory scheme will spell these out in some detail.

Drinking water source protection

All jurisdictions have some regulatory tools for controlling water pollution, with some (for example British Columbia) requiring water providers to assess risks to source water supply. Explicit regulatory measures for assuring source water protection on a watershed basis are not well established, however. British Columbia and Manitoba have regulatory authority to establish water protection areas, but the new Clean Water Act in Ontario is the only current Canadian model for a comprehensive watershed management system for source protection.

Third-party audits

An added level of assurance that both the water provider and the regulator are performing their responsibilities effectively can be achieved by requiring third-party audits. To be effective, performance standards defining best practice are needed to provide a benchmark for the audits. Ontario is the only province currently developing a formal third-party audit program, but other provinces have required water providers to retain independent consultants to perform technical assessments of facilities. Less formally, the American Water Works Association has an excellent program called QualServe which encourages peer reviews among its member utilities, including Canadian members.

Occupational health and safety

Water and wastewater treatment and delivery systems involve a number of occupational hazards ranging from hazardous chemical use, to confined space and various maintenance hazards. All provinces and territories have some form of occupational health and safety regulations that should apply to these facilities.

Special considerations

Four of the elements outlined above require special attention because of the unique circumstances of First Nations and reserves.

Wells, cisterns and septic systems

As noted above, the provinces regulate (more or less) the construction of private wells, cisterns or septic systems serving an individual house or even a small number of connections, but generally not their operation. The rationale is that these are on private land and, after commissioning, are therefore the landowner's responsibility.

Lee Ahenakew,, 4sight Consulting, Toronto

It is important to note that the high-risk systems only include communities with central treatment plants and distribution systems. The current INAC strategy does not address communities on individual wells or lake intakes which face an even higher risk from waterborne disease. These homes make up approximately 35% of the [on-reserve] population...

At present, such facilities when located on reserve do not uniformly appear to have even the minimal protection afforded by these provincial requirements. The hearings provided ample evidence of wells that were badly constructed, located where surface run-off could infiltrate them, and open to contamination by animals. We likewise heard evidence of poorly designed and badly maintained septic systems and cisterns.

Our terms of reference allowed us to consider "Indian and Northern Affairs policy not to fund private, individual systems (wells and septic systems)" without attempting to address or resolve it, except to note any problems it caused and further work that might be needed.

A policy not to fund wells and septic systems does not preclude trying to ensure that these are built to a safe standard. Provinces and municipalities do not fund private wells or septic systems, but they do require a landowner to construct them properly, and in the case of wells, to do so by using a licensed contractor. This does not appear to be the case with the federal government. Health Canada tests well water at the time of commissioning, but has no regulatory authority over the construction of the well nor, indeed, power to act if the test results show the water to be unsafe. Band councils have authority, under the Indian Act, to pass resolutions governing these installations, but few if any have done so. It is understandable that they might be disinclined to require band members to meet potentially expensive standards..

A further point is that both INAC and Canada Housing and Mortgage Corporation are involved in the funding of individual, household-level systems as part of the construction of federally-supported housing stock. The involvement, however, does not include maintenance, repairs, upgrades or replacement after construction.

There is a case to be made that the owner of the land on which private wells, cisterns and septic systems are located has obligations around their operation. Under the Indian Act, the Crown has underlying title to reserve lands. It should therefore follow that the Crown would also have title to fixtures to the land such as private wells, septics and cisterns. (It also follows, of course, that this title would extend to all fixtures on reserve lands, including community water and wastewater systems.) This could support an argument that the Crown at least shares responsibility for major repairs and maintenance related to the health and safety of private wells, cisterns and septics, in addition to its obligations around community systems.

Finally, a problem arises from the current policy. Because INAC does fund the building and operation of community systems, and because resources are so limited, this policy might disincline INAC to support the building of collective systems to replace individual wells and septic systems. This is not necessarily a problem in and of itself, except that:

The federal government has not taken the kind of precautions imposed off-reserve to ensure individual systems are adequate;
With limited resources, the upgrading of a high-risk community plant elsewhere in the region might take precedence over building a plant that might lower the (largely undocumented) risks from individual systems; and
Neither band councils nor members themselves have the resources, in many cases, to ensure the adequacy of individual systems.

This is clearly an area in which the federal government must undertake further work. There is, first of all, the need to put in place the basic controls on construction that are in place off reserve. The protection afforded by the controls on construction could even be enhanced. For example, a serious gap in the current provincial and territorial standards for wells is site selection, which is critical to the safety of drinking water. Control over site selection would be a valuable element of all well-construction regulations, including those on reserve.

Beyond that, more work needs to be done to understand and meet the additional responsibilities for individual systems incumbent on the Crown and local Chiefs and Councils. These are not private ownership situations as is understood off reserve. The federal government is the residual landowner, while the band council may be regarded as the landlord. Even where residents occupy the land through a Certificate of Possession, this is not ownership "in fee simple."

Because of these ambiguities, at a minimum it seems reasonable that whoever funds the building of a house or facility on reserve land should be responsible for ensuring that any well or septic system serving it is included in the cost and built to appropriate standards. Any regulatory framework needs to incorporate this point, and should also reflect the outcome of the further work that needs to be done.

However this is resolved, public education to ensure proper maintenance of these systems and protection of the water they provide (or in the case of septic systems, the water they return to nature) is critical. Given that they have some responsibility as landowner or landlord, the federal government and local councils might well undertake this as a worthwhile investment, not to mention insurance policy. It is noteworthy that even without such a legal responsibility, the province of Alberta helps its thousands of residents on private wells by providing free potability testing.

Water withdrawal and use

For First Nations, the control of water takings may be seen as quite fundamentally related to issues of self-government. There is a strong case that First Nations or the federal government as their fiduciary retains all the rights to ground and surface water on reserves, notwithstanding the Natural Resources Transfer Act of 1930. While there appears to be no case law on this point, it seems that at least one out-of-court settlement has compensated a First Nation for loss of the use of traditional waters. [15]

In any case, First Nations water management in general and source protection in particular will require First Nations to have the capacity to regulate water takings on reserve lands.

Floyd Provost, Piikani First Nation

[It's] very, very crucial that the wild areas remain [in our watershed]…We want to protect that area because we're going to use it… we want our people to have good water.

Once we finish using that water and we send it to the people downstream from us and the rest of Canada that use it, we also want to protect it …. We're neighbours to everybody…

Drinking water source protection

Source protection on a watershed basis is of special importance to First Nations communities for both historic and legal reasons. The stewardship basis for customary law that many presenters outlined reflects the traditional importance in First Nations culture of preserving waters and the lands surrounding them. In the modern context, this translates to a strong interest on the part of First Nations in the source water protection activities of their neighbours, and a reciprocal interest in their own source water protection activities that have an impact on others. Water, after all, knows no jurisdictional boundaries.

The legal consideration that follows, however, is that water regimes must follow jurisdictional boundaries. In most cases, First Nations share watershed areas with communities and landowners who are bound by provincial source protection measures. Unless First Nations are willing to be subject to provincial source protection regulations (which in any event may be minimal, depending on the province), this calls for some institutional basis that would allow and encourage cooperation in this area. This is already happening, although on a piecemeal basis, in some parts of the country.

Occupational health and safety

While workers in public water systems in the provinces and territories are covered by the occupational health and safety regime of the jurisdiction in which they are employed, including regular inspection and enforcement activities, this would not seem to be the case in First Nations.

The Canada Labour Code applies to federal works, undertakings or businesses. Courts have held that band council operations are federal undertakings. Accordingly, the Canada Labour Code applies to water and wastewater facilities operated by band councils.

The Canada Labour Code is now a relatively comprehensive statute, addressing both collective bargaining and a number of matters such as maximum hours, vacations, minimum wages, health and safety, and so on. The Code covers most matters that one finds in provincial labour standards and occupational health and safety legislation. Nonetheless, where provincial law (including provincial labour standards and health and safety legislation) touches matters not directly addressed by, or by implication not excluded from, federal regulation under the Canada Labour Code, provincial labour laws relating to health and safety (for example, prohibitions on smoking, mandatory drug testing, procedures for reporting workplace injuries) may apply as being "laws of general application," provided these laws are not related to "Indianness."

Courts view band council operations to be strongly tied to "Indianness." Thus, if a band operates a water facility, it is unlikely that provincial labour laws would apply as laws of general application. On the other hand, if a private party operates the water facility, then the provincial labour laws may apply. But where a private party is operating the water facility on behalf of band council – that is, where the private party is merely the operating agency for the band council and is subject to its supervision and control – it is unlikely that such provincial labour laws would apply.

In any event, while it appears that while the Canada Labour Code (at a minimum) may apply to workers on reserves, there does not seem to be a program of regular inspection and enforcement.

Creating a regulatory regime

The first sections of this chapter dealt with the content of a regulatory regime. We now turn to the question of how such a regime for First Nations would be constructed.

Respect for customary law

Canadian statutes have begun to incorporate customary aboriginal law into the law that governs all Canadians. Examples include the Wildlife Act, the Canadian Environmental Assessment Act, the Oceans Act, the Mackenzie Valley Resource Management Act, the Species at Risk Act, and the Canada National Parks Act. Volume II of this report provides details of the ways in which these statutes incorporate customary or traditional aboriginal law.

It also outlines some of the thinking of both legal scholars and First Nations on the incorporation of such law into federal statutes. From these sources, as well as through the engagement process, we are of the view that cultural and traditional attitudes to water could be used effectively in the development of principles incorporated in new statutes or regulation dealing with water quality. This would likely provide a more holistic basis for legislation than is typical of the provincial water regimes, with a focus on protecting water from source to source – or, as some put it, "source-to-sink-to-source" – not just source to tap.

A clear mandate for the regulatory body

The risks to the regulatory process that arise from a muddling of the roles of various parties are well known. In particular, the regulator must be separate from the regulated. This is not as simple as it might seem in this instance. Providing water and sewer services to First Nations is a partnership involving four federal departments, First Nations and First Nations organizations. Avoiding conflicts of interest dictates that the regulator cannot be any of these partners – and that its decisions can bind any of the partners.

The importance of independence is reflected in the growing recognition on the part of provinces, which regulate water safety and have traditionally helped to fund capital projects, that the best funding arrangement might be one in which system owners (the municipalities) rely on water rates to fund most of the costs of building, maintaining and running systems. Among other benefits, this largely removes the conflict created when the same level of government funds and regulates water systems.

As already noted, however, First Nations have very limited capacity to fund their own systems at present. Until and unless their economic capacity grows to the point where they can fund their own systems entirely, they will continue to rely on INAC for a significant portion of this funding.

A further point is that all jurisdictions separate the formal powers of inspection and enforcement from the coaching and technical assistance roles aimed at building community capacity, because of the inherent conflicts in mixing these roles. We agree with the observation of government officials in the organizations that partner with First Nations governments on water and wastewater that a new entity would be needed for inspection and enforcement. Stirring up cooperative waters with the stick of enforcement is a poor way to build trust and confidence.

For all of these reasons, any regulatory framework would have to create a new body responsible for regulation, enforcement and accountability, which is called the First Nations Water Commission for the purposes of this report. Its board would be named by the Minister of Indian Affairs and Northern Development in consultation with the Assembly of First Nations and its budget would be in the Estimates, but it would be otherwise at arm's length from government and the First Nations community. There is ample precedent for this style of operation. A majority of the board members should be drawn from the First Nations water sector.

This body would have the power to require any of the partners involved in providing water and wastewater services to First Nations to meet their responsibilities. In the case of the federal government's funding commitment, the orders of this body would help to provide an independent view of the adequacy of federal funding.

The framework would also require a separate appeals tribunal similar to those in Alberta, British Columbia and Ontario, as part of the checks and balances on the decisions of the commission. There are several precedents in federal practice for the separation of enforcement and appeals, as for example with the Competition Bureau and the Competition Tribunal.

Uniformity and the 1977 policy

Governments, including those of the First Nations, often speak blithely of enacting the "most stringent" of available guidelines. This is usually a reference to the maximum allowable contaminant levels, rather than the more important matters of design and operation of facilities. The latter must accommodate local realities as much as follow an external handbook.

Minor differences between the Guidelines for Canadian Drinking Water Quality and the regulations of particular provinces appear from time to time. There is a danger that blind adoption of the toughest numbers found anywhere may give rise to conflicts with provincial regimes and cost a lot more money without any corresponding improvement in public health.

Two reasonable approaches are available. In one, the federal statute could adopt by reference the standards and regulatory approaches of the province in which a First Nation was situated. By contrast a single national regulation, based on a synthesis of the best provincial practices, could be drafted. Either would work. Both would be consistent with the 1977 policy and, more importantly, with the equality provision (s. 15) of the Charter. What would be important would be to avoid a patchwork of dozens or hundreds of different regulatory frameworks of widely varying cost and effectiveness. These matters are discussed in more detail in the following chapter.

Opting-in possibilities

A statute that set up the requisite bodies and provided for the creation of regulations to cover each of the areas mentioned above might allow individual First Nations to opt in when ready. It might allow First Nations to select a subset of regulations, although the interdependence of regulations would require that this be given careful study.

The advantage of a one-way opting-in clause would be to maximize deference to the ideal of self-government, but it would come at a certain cost in administrative confusion and, worse, continued absence of the improvements to public health that a well-designed regulatory system could bring. The trade-offs here are political, not technical or legal. Opting-in is nevertheless a possibility.

Footnotes

Further information available at Cooperative Research Centre For Water Quality and Treatment Website accessed September 27, 2006. (return to source paragraph)
Drinking Water - New Zealand Ministry of Health website. Accessed September 24, 2006. Drinking-water in New Zealand (return to source paragraph)
Presentation to the panel on August 22, 2006, by Merrell-Ann Phare, Executive Director and legal counsel for the Center for Indigenous Environmental Resources, Winnipeg. The settlement was between the Province of Alberta and the Piikani First Nation. (return to source paragraph)

Table of Contents