Report of the Expert Panel on Safe Drinking Water for First Nations
Appendix A: Possible Elements of Legislation
General
- The legislation must bind the Crown.
- the provision of sewage and water services is a joint function of the federal departments and First Nations, and each partner
must exercise a duty of care in discharging its responsibilities.
Conflict of Laws
- A Band Council may make bylaws not inconsistent with the legislation.
- Where federal and provincial regulations address the same subject matter, the federal regulation will apply.
Administration
- The Federal government may make agreements with provinces and First Nations regarding provincial services in the areas of training and technical assistance.
First Nations Water Commission
- A First Nations Water Commission shall be established that shall be:
- composed of an odd number of members appointed by Order in Council on the recommendation of the Minister and in consultation with the Assembly of First Nations, the majority of whom shall be First Nations members or employees of First Nations organizations and tribal councils.
- arms-length from INAC and the First Nations community, and its members shall avoid conflict of interest in decision-making.
- ions Water Commission shall be responsible for licensing constructionThe First Nat and operation of water and wastewater facilities, inspection, enforcement, and administrative penalties.
- The First Nations Water Commission may:
- provide policy advice to the Minister
- lead consultation on developing policy and legislation on water and wastewater, and
- articulate customary laws and traditional knowledge about First Nation water and wastewater that should be put into operation.
- The First Nations Water Commission shall report to Parliament annually on the state of water on reserves and the adequacy of First Nation water legislation and policy.
First Nations Water Tribunal
- A First Nations Water Tribunal shall be established that shall be:
- composed of an odd number of members appointed by Order in Council on the recommendation of the Minister and in consultation with the Assembly of First Nations, the majority of whom shall be First Nations members or employees of First Nations organizations and tribal councils.
- arm’s-length from INAC and the First Nations Water Commission and its members shall avoid conflict of interest in decision-making.
- The First Nations Water Tribunal:
- shall hear appeals of approvals and orders related to water and wastewater facilities, and
- may receive and investigate complaints about enforcement from First Nation members and issue orders for their resolution.
Resources
- The federal government
- as owner, shall adequately fund the construction, operation and maintenance of water and wastewater systems and training, including the Circuit Rider Program.
- shall fund the First Nations Water Commission and Tribunal.
- may provide advice and technical assistance directly or in funding arrangements with First Nation entities in such fields as technical support, assistance in facility planning and design, and operator training.
Operation of Facilities
- The First Nations shall operate water and wastewater systems to meet standards set out in regulations, namely:
- Water and wastewater facilities shall be under the supervision of qualified operators appropriate to the class and type of water or wastewater facility.
- A person who is certified to operate water and wastewater facilities by a provincial agency is considered to be certified for purposes of the legislation.
- The First Nations shall follow the procedures for drinking-water testing and respond to adverse water quality test results as set out in regulation.
- The First Nations shall operate drinking-water system and sewage treatment plants in accordance with the standards set out in regulation, and following approval by the First Nation Water Commission.
- The First Nations shall report regularly to First Nation members and to the First Nation Water Commission, including test results and corrective action taken.
- The First Nations shall have an emergency plan including clear roles and responsibilities for issuing boil water advisories or orders and cease and desist orders, closing facilities, notifying the public, taking corrective action and providing an alternative potable water source for the First Nation community.
- The First Nations shall ensure that employees' work environment at drinking-water and wastewater facilities is safe.
- The First Nations shall monitor sewage effluent quality and ensure the effluent is within its regulatory limits.
- The First Nations may:
- contract with third parties for provision or sale of water and wastewater services
- generate revenue to cover the cost of water and wastewater services, and
- collaborate with municipal and provincial governments.
Approvals, Inspection, Investigation, and Enforcement
- The First Nations Water Commission has the following powers:
- issue water and wastewater facility and operation approvals
- ensure that facilities are adequately funded
- encourage peer reviews of the design and construction of water and wastewater facilities
- appoint inspectors and investigators, and
- issue administrative penalties.
- Inspectors appointed by the Commission have the following powers:
- enter premises
- search and seize relevant documents
- take samples
- issue orders (contravention order, order to address imminent drinking-water health hazard, order to decommission or shut down system, to provide service, to prepare operational plan) or otherwise to ensure compliance with licence conditions, and
- appoint interim operating authority.
- Investigators have the power to
- investigate complaints
- investigate potential areas of non-compliance as reported by the inspectors, and
- recommend administrative penalties to the First Nations Water Commission.
Source Protection
- First Nations may:
- make agreements amongst themselves and surrounding jurisdictions regarding water, wastewater and source protection (e.g. conservation authorities, municipalities, counties, territories and provinces), and
- establish well-head protection zones and regulate land use that poses drinking-water threats on reserve lands (e.g. septic, waste, chemical handling).
Regulations
- The Governor in Council may make regulations, or may adopt in whole or in part, by reference, the standards or regulations of other competent
jurisdictions, after consultation by the Minister with the Commission:
- prescribing drinking water quality standards and sewage effluent standards
- prescribing standards for design, construction, operation, maintenance and management of drinking water and wastewater systems
- respecting qualifications and expertise of contractors engaged in the design and construction of drinking water and wastewater facilities
- prescribing licensing of drinking water and wastewater facilities
- prescribing minimum treatment standards
- prescribing drinking water monitoring, testing and responding to adverse drinking water quality tests
- prescribing employment of certified operators of drinking water and wastewater facilities
- prescribing reporting requirements
- governing financial plans related to First Nations drinking water and wastewater operations
- governing emergency plans and procedures
- governing wells, well-heads, casings, licenses, abandoning wells, provision of well logs to First Nations and to province and to INAC/HC/Geological Survey of Canada
- governing water extraction from ground and surface water
- governing drinking source water protection and well-head protection zone
- governing septic tanks, bulk water transport and cisterns
- prescribing penalties, including administrative penalties
- prescribing harmonization of the drinking water legislation with other federal legislation
- regarding any matter necessary or advisable to carry out the purpose of the legislation
- necessary to enable a First Nations group which is not a band as defined in the Indian Act but is a party to a treaty, land claims agreement or self-government agreement with Canada to benefit from the legislation (i.e. as stated in the FNFSMA)
- that vary from province to province/First Nation to First Nation.
Review
- The administration of this Act shall, every several years after the coming into force of the Act, stand referred
to such committee of the House of Commons, of the Senate or of both Houses of Parliament as may be designated or established for that purpose.
- The committee designated or established for the review shall, as soon as practicable, undertake a comprehensive review of the provisions and operation
of the Act and shall, within one year after the review is undertaken, submit a report to Parliament thereon, including a statement of any changes to the
Act or its administration that the committee would recommend.
