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

2.1 Provincial Laws of General Application

Applying provincial drinking water and wastewater law as a law of general application is fraught with such uncertainty that it is neither a viable nor effective option.

Section 91(24) of the Constitution Act, 1867 confers upon the federal government exclusive jurisdiction to make laws in relation to "Indians and lands reserved for the Indians." [2].

A provincial law may, nonetheless, apply to Indians and lands reserved for the Indians in one of two ways:

of its own force as a law of general application so long as it does not affect "Indianness." Because the scope of "Indianness" has not been exhaustively defined, it is difficult to determine whether any particular provincial water regulation would apply of its own force. And worse, because of the nature of the test, some provisions of the provincial regime might apply, while others would not. This would create challenges for both application and enforcement.

On the one hand, an argument can be made that the water regulation pertains to public health in general and does not relate to being "Indian." On the other hand, the courts have found that band council activities related to local government functions form an integral part of primary federal jurisdiction over "Indians and lands reserved for the Indians." [3]

Matters are further complicated for provincial water regimes that regulate land use. For example, regulations regarding source water protection and emergency powers to issue orders shutting down a water treatment facility clearly affect land use. Such regulations run the risk of intruding on the federal core of "lands reserved for the Indians."
where the provincial law does regulate "Indians," then the provincial law may apply by virtue of s. 88 of the Indian Act. Because it is unlikely that this section is available where provincial laws affect the use of reserve lands, this is an uncertain basis for applying provincial drinking water laws on reserve.

The complexities and uncertainties of this option create enormous challenges for regulators and the regulated alike in determining whether provincial water laws apply. Until the courts provide such guidance, the possibility remains that the provincial water law is inapplicable on reserve as a law of general application.

Given the importance of the objective of ensuring the delivery of safe, clean drinking water to First Nations people on reserve, such complexities and unpredictability as to the application of provincial water laws render this option essentially untenable.

2.2 Existing Federal Legislation

A number of federal laws relate to water and First Nations, including the Canada Water Act, Canadian Environmental Protection Act, Department of Health Act, Department of Indian Affairs and Northern Development Act, Fisheries Act, Indian Act, First Nations Land Management Act, and the First Nations Commercial and Industrial Development Act. [4]

Although these federal laws provide authority for some of the elements that would be included in drinking water and wastewater regulation on reserves, none of them provides a workable framework for all. Because of the significance of water to a healthy environment, the multiplication of threats to safe water, and the increasing complexity of regulating water, there is considerable disadvantage to having a patchwork of federal laws to govern different aspects of water and wastewater in First Nations communities.

The most likely candidates are the Indian Act and the First Nations Land Management Act (FNLMA). The Indian Act authorizes Cabinet to make regulations to prevent the spread of communicable diseases and to provide for sanitary conditions. [5] First Nations may also pass bylaws under the Indian Act to regulate public wells, reservoirs, cisterns and other water supplies. [6]

The regulations and bylaws may be enforced by derisory fines or short prison terms. There is no provision for culturally sensitive compliance enforcement. These weak and uncreative enforcement provisions would not provide effective deterrence.

The FNLMA provides tools to manage lands and resources to First Nations that "opt in" to the Act by signing the Framework Agreement on First Nations Land Management and developing a land code. It authorizes First Nations to develop their own regulations to protect the environment and provide local services. [7]

The disadvantage of using the FNLMA for water regulation is that opting-in requires the First Nation to engage in the complicated and time-consuming process of adopting a land code before passing water regulations. This process requires First Nations to decide about issues related to disposition of lands, revenues from natural resources, accountability, rules respecting the disposition of property upon marriage breakdown, and a whole host of other matters. First Nations may want to regulate standards for safe drinking water, but may not be ready, or have resources, to opt into the FNLMA.

Thirty-six First Nations, as listed in the Schedule to the FNLMA, signed the Framework Agreement. These 36 First Nations are able to develop and ratify a land code according to the procedures set out under the FNLMA. Seventeen of these First Nations have developed land codes.

2.3 New Federal Legislation

The Constitution Act, 1867, s. 91(24) gives the federal government the jurisdiction to develop new federal legislation to govern water on First Nations reserves.

An advantage of new federal legislation is that it could be a bridge to self-government by incorporating a broader role for First Nations people through a First Nations Water Commission with approval, licensing, enforcement and policy roles.

It could improve the capacity of First Nations to deal with water issues and lead to the eventual implementation of self-government over water.

The process of developing and enacting the legislation could also serve as a relatively small-scale test-case and model for how self-government legislation relating to specific sectors might be negotiated and implemented in the future.

2.4 Incorporating Provincial Water Laws in New Federal Legislation

Another possible option is to incorporate provincial water laws by reference in new federal legislation.

This option offers many of the advantages of the previous one. An added advantage is that each province already has in place the institutional infrastructure and technical expertise to support and extend the application of its water laws on reserve.

The drawback to this option, however, is that there are gaps and varying water standards province to province, which would lead to the undesirable effect of some reserves benefiting from a more comprehensive regime than others.

The issue of who would inspect, investigate and enforce the provincial water standards is also problematic. Buy-in from the provinces and First Nations would be needed for the provinces to assume these roles. This would require the federal government to engage in negotiations with each province and consult with First Nations, which could in turn lead to lengthy delays.

A First Nations Water Commission, however, could play an instrumental role as an oversight body and could facilitate negotiations and discussions with the provinces and First Nations.

As discussed in the new federal statute option above, the advantages to establishing a First Nations Water Commission are that it would facilitate accountability and credibility, and would enhance capacity-building and First Nations participation in regulating their own water affairs. As such, it would assist in building the bridge to self-government.

2.5 Applying Asserted First Nation Jurisdiction and Customary Laws

A final option considered is to develop water legislation based on First Nations customary laws. The legal basis is the inherent right to self-government as acknowledged in the 1995 federal policy recognizing First Nations' inherent right to self-determination; it upholds s. 35(1) of the Constitution and its underlying purpose of reconciliation.

This task would start with, and be driven by, First Nations across the country. The objective would be to incorporate into federal legislation the basic tenets of customary law as they relate to water. It may be difficult, however, to discern exactly what First Nations customary law in this area is since it varies from nation to nation.

Footnotes:

Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3 reprinted in R.S.C. 1985, App. II, No. 5, s. 91(24) [hereinafter Constitution Act, 1867]. For a discussion on this topic, see P. Hogg, Constitutional Law of Canada, 3rd ed., (Toronto: Carswell, 1992) at 664-670 [hereinafter Hogg]. (return to source paragraph)
Whitebear Band Council v. Carpenters Provincial Council Saskatchewan (1982), 135 D.L.R. (3d) 128 (Sask. C.A.) [hereinafter Whitebear]. (return to source paragraph)
Canada Water Act, R.S.C., 1985, c. C-11 [hereinafter Water Act]; Canadian Environmental Protection Act, 1999, S.C., 1999, c.33 [hereinafter CEPA]; Department of Health Act, S.C., 1996, c.8 [hereinafter Health Act]; Department of Indian Affairs and Northern Development Act, R.S.C., 1985, c. I-6 [hereinafter DIANDA]; Fisheries Act, R.S.C., 1985, c. F-14 [hereinafter Fisheries Act]; Indian Act, R.S.C., 1985, c. I-5 [hereinafter Indian Act] First Nations Land Management Act, 1999, S.C., 1999, c. 24 [hereinafter FNLMA]; First Nations Commercial and Industrial Development Act, S.C., 2005, c. 53 [hereinafter FNCIDA]. (return to source paragraph)
Indian Act, ibid. at s. 73(1)(f) and (k). (return to source paragraph)
Indian Act, ibid. at s. 81(1)(l). (return to source paragraph)
FNLMA, supra note 4 at s. 20(2)(c) and (d). (return to source paragraph)

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