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

Background

At present, there is no regulatory framework that applies to drinking water and wastewater on reserves. The current situation is best described as consisting of a number of parties whose roles and responsibilities are bound by government policies and contribution agreements. These arrangements are neither comprehensive nor easily deciphered; most critically, there are numerous gaps and a lack of uniform standards, as well as enforcement and accountability mechanisms.

The Office of the Auditor General, through the 2005 Report of the Commissioner of the Environment and Sustainable Development, recommended implementing a regulatory framework for drinking water in First Nations communities. The Commissioner found that:

When it comes to the safety of drinking water, residents of First Nations communities do not benefit from a level of protection comparable to that of people who live off reserves. This is partly because there are no laws and regulations governing the provision of drinking water in First Nations communities, unlike other communities. [1].

In June 2006, the Minister of Indian Affairs and Northern Development, in consultation with the Assembly of First Nations (AFN), appointed an expert panel to hold hearings and provide options to regulate water on First Nations reserves. At the panel's option, it considered wastewater in addition to drinking water.

To assist the expert panel, Willms & Shier Environmental Lawyers LLP was commissioned to identify the legal basis and legal advantages and disadvantages, of five options for regulating water on First Nations reserves:

Application of provincial law as laws of general application
Federal regulation passed pursuant to an existing federal statute including federal laws that authorise First Nations to pass laws on water
A new federal act
Incorporating provincial water laws in new federal legislation
Applying asserted First Nations jurisdiction and customary laws

Footnotes:

Office of the Auditor General of Canada, Report of the Commissioner of the Environment and Sustainable Development to the House of Commons, (Ottawa: Minister of Public Works and Government Services Canada, 2005). (return to source paragraph)

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