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

Existing Federal Legislation

This section reviews a number of federal laws that 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, the Fisheries Act, the Indian Act, the First Nations Land Management Act, and the First Nations Commercial and Industrial Development Act. [48]

The objective was to determine whether the Acts include legislative authority to regulate in the fields that would be included in a water regulatory framework applicable to First Nations communities, and the advantages and disadvantages of each Act.

A water regulatory framework for First Nations could include the following elements:

Water quality standards
Design approvals for water and wastewater facilities
Operating approvals for water and wastewater facilities
Operators (licensing water and wastewater facility operators)
Testing (monitoring water quality standards, taking corrective actions)
Information provision (reporting adverse results, annual operations reporting)
Enforcement (inspection, investigation and prosecution of legal standards)
Emergencies (planning and responding to emergencies)
Drinking water source protection
Water taking
Wells: siting, drilling, decommissioning
Individual septic tanks
Trucks and cisterns

3.4 Canada Water Act

The Canada Water Act [49] enables the Minister of Environment, with Governor in Council approval, to establish consultative arrangements with provinces on water resource matters, and to conclude federal-provincial agreements for planning and implementing programs in any waters where there is a significant national interest in water resource management. [50]

The Act permits the Minister, directly or in co-operation with any provincial government, institution, or person, to establish an inventory of those waters, collect data, and conduct research associated with water resources. [51]

The Act also enables the Minister, with approval of the Governor in Council, to conclude agreements with provinces for the joint designation of water quality management areas for any water where water quality management has become a matter of urgent national concern. [52]

The Act provides that the Governor in Council may make regulations prescribing what constitutes waste when added to water, prescribing treatment of wastewater, and restricting deposits in water quality management areas. [53] The Act also provides for inspection and enforcement, with fines of up to $5,000 per offence. [54]

With the exception of a limited role in source protection and wastewater standards and treatment, the Canada Water Act does not authorize regulations in several of the fields that are required for a First Nations water regulatory framework. In particular, it does not provide for certifying operators, construction and design approvals, water takings, and responding to emergencies.

3.5 Canadian Environmental Protection Act

The goal of the Canadian Environmental Protection Act (CEPA) [55] is to contribute to sustainable development through pollution prevention and to protect the environment, human life and health from the risks associated with toxic substances.

The Act defines a substance as toxic if it enters or may enter the environment in amounts that:

have or may have an immediate or long term effect on the environment or its biological diversity
constitute or may constitute a danger to the environment on which life depends, or
constitute or may constitute a danger in Canada to human life or health. [56]

CEPA provides a process to identify toxic substances, and to "virtually eliminate" dangerous toxic substances like DDT, dioxin, and furans, all of which are highly toxic, accumulate in the tissues on plants, animals or humans and take a long time to break down in nature.

Health Canada works in partnership with Environment Canada to assess potentially toxic substances and to develop regulations to control toxic substances.

Part 9 of CEPA allows for regulations that apply specifically to aboriginal land on pollution prevention and the control and release of substances.

CEPA is focused on regulating substances and has limited use in regulating water quality generally. CEPA does not authorize regulation in the fields necessary for a First Nations water regulatory framework. In particular, it does not provide a mechanism for regulations that cover operator certification, approvals of facilities, water takings or source protection.

3.6 Department of Health Act

The Department of Health Act states that:

The powers, duties and functions of the Minister extend to and include all matters over which Parliament has jurisdiction relating to the promotion and preservation of the health of the people of Canada not by law assigned to any other department, board or agency of the Government of Canada. [57]

The jurisdiction to exercise power, duties and functions under the Act is restricted to areas not by law assigned to any other department, board or agency of the Government of Canada. It is arguable that the Indian Act assigns responsibility for drinking water to the federal government and First Nations, as will be discussed below. The Department of Health Act is therefore an uncertain basis for regulating drinking water on First Nations.

However, even if this jurisdictional hurdle could be overcome, the regulations passed under the Act apply to relatively simple systems and provide for only weak enforcement powers, as existing regulations under the Act illustrate.

The Potable Water Regulations for Common Carriers [58] made under the Act protect public health on railways, ships, aircraft and all other methods of transportation and their ancillary services. The regulations set out a list of potable water requirements for common carriers and provide authority for officials to enforce the provisions.

The penalty for an offence is a fine not exceeding $200 or imprisonment for a term not exceeding three months. [59]

The regulation does not include inspection powers to enter premises, take samples, and make orders required for a drinking water regulation that applies to larger systems. Nor does the regulation provide a mechanism for approvals for water or wastewater facilities

Accordingly, the Department of Health Act does not provide a sufficient framework for regulating the complex water and wastewater systems that serve First Nations communities.

3.7 Department of Indian Affairs And Northern Development Act

The Department of Indian Affairs and Northern Development Act (DIANDA) establishes the Department of Indian Affairs and Northern Development (which is now known as Indian and Northern Affairs Canada). [60]

The Act provides that the Minister's powers, duties and functions extend to all matters over which Parliament has jurisdiction, and which are not by law assigned to any other department, board or agency of the Government of Canada, relating to Indian affairs, the Yukon Territory, the Northwest Territories and Nunavut and their resources and affairs, and Inuit affairs. [61]

The Act does not include a list of specific matters that can be regulated and thus does not provide the framework for a water regulation. However, by virtue of its power, duties and functions in relation to Indian affairs, the Minister could administer a new First Nations water law.

3.8 Fisheries Act

The Fisheries Act regulates the harvesting of fish, protects fish habitat, prevents pollution of fishery water, and ensures safe human use of fish. Under a 1985 Memorandum of Understanding between the Ministers of Environment and Fisheries and Oceans, the Minister of the Environment administers the pollution prevention provisions of the Fisheries Act.

The pollution prevention provisions include s. 34, which defines a “deleterious (harmful) substance” and s. 36 to s. 43 with the exception of s. 37, inclusively. The Minister of the Environment also administers the regulations made under these provisions. It is, however, the Minister of Fisheries and Oceans who remains accountable for the recommendation of regulations under the pollution prevention provisions to the Governor in Council, who appoints fisheries inspectors for the enforcement of these provisions, and who is entitled to use the Ministerial order provisions under s. 37. The use of this Act for even one aspect of a First Nations water regulatory framework complicates the regime by adding yet another ministry.

The Fisheries Act is a crude instrument for water management generally or source protection in particular. It focuses on the release of substances which are highly lethal to specific kinds of fish, not on safe source water or environmental quality in general. It does not cover releases into groundwater. It is not a preventive statute as it focuses on enforcement once a deleterious substance has been released.

Although the deleterious substance provisions of the Fisheries Act provide protection of drinking water sources to a limited extent, they do not provide for the type of comprehensive, holistic, source-to-source protection sought by the First Nations. The Fisheries Act does not provide a framework for any of the other fields required for a First Nations water regulatory framework such as certification of operators, approvals, emergency planning, wells or water or sewage transport.

3.9 Indian Act

3.9.1 Regulations

Section 73 of the Indian Act provides that Cabinet may make regulations to:

prevent, mitigate, and control the spread of diseases on reserves, whether or not the diseases are infectious or communicable; and
provide for sanitary conditions in private premises on reserves as well as in public places on reserves. [62]

These provisions have yet to be used to regulate water and wastewater on reserves. The courts have not considered the expression "sanitary conditions" in the context of the Indian Act nor whether this regulatory power includes the authority to pass regulations covering all of the fields required for a comprehensive safe drinking water regulatory framework on reserve.

Even apart from those basic questions, the regulation-making power under the Indian Act cannot deal with the complexity of modern water and wastewater regimes:

The Act does not provide for the inspection and investigation powers necessary for enforcement of a water regulatory framework on reserve.
The regulations may only be enforced by insignificant fines (not exceeding $100) or imprisonment for a term not exceeding three months.
Although regulations could cover approval of a facility, the Act does not provide for the creation of an arm's-length body independent of INAC to issue the approval. As a result, either INAC would both fund facilities and issue the approvals, or INAC and a second federal department would assume those respective roles. Either situation would create a conflict because the same level of government funding a facility would potentially issue orders requiring further spending to correct problems.

An additional problem for First Nations is that these enforcement provisions do not provide for creative or culturally appropriate sentencing.

This regulation-making power has rarely been used even for the enumerated heads: a search uncovered only three regulations passed under s. 73. The reason seems to be, at least in part, the weak enforcement provisions.

Moreover, only one of the regulations, relating to waste disposal, deals with an environmental/health issue, and analysis shows it to be an unsophisticated response to a complex problem.

Even if all of these problems could be resolved, no single federal department has the resources and technical expertise necessary to support the complex regulatory and enforcement infrastructure of a modern water regime. The experience to date, in which departments share a number of responsibilities, as well as the potential conflicts between funding and enforcement, argue against simply spreading that infrastructure load across several departments.

In sum, the Indian Act regulation-making power does not provide sufficient authority for a comprehensive safe drinking water regulatory framework on First Nations reserves.

3.9.2 Bylaws

Section 81 of the Indian Act provides that a band council may make bylaws that are not inconsistent with the Act or with any federal regulation for the construction and regulation of the use of public wells, cisterns, reservoirs and other water supplies, and to prevent the spread of infectious diseases. [63]

To our knowledge, there have been no bylaws passed for the regulation of public wells, cisterns, reservoirs and water supplies by band councils.

Enforcement is typically through an arrangement with the provincial Crown. Fines for violation of bylaws are $1,000, or imprisonment of a term not exceeding 30 days, or both. [64] The Act does not provide for the inspection and investigation powers necessary for enforcement of a water regulatory framework on reserve.

The Indian Act band council bylaw-making power does not provide a sufficient authority for a comprehensive water regulatory framework on First Nations, in part because the enforcement powers are weak.

Although the federal government could develop a model band bylaw for bands to adopt, which could include water quality, certification, and approval standards, many First Nations would still lack the capacity to approve the facilities, inspect and enforce these bylaws. This is further complicated by the conflict of having a First Nation own, operate and also regulate a facility.

3.10 First Nations Commercial And Industrial Development Act

The First Nations Commercial and Industrial Development Act (FNCIDA) was developed to regulate “commercial or industrial undertakings” to be undertaken by major industrial operators on reserve (for example, the Fort MacKay oil sands project).

The Act provides that the definition of "commercial and industrial undertakings " can be broadened by regulation. [65] It provides for the incorporation by reference of provincial laws regulating those undertakings. [66] The legislation requires, as a condition precedent, agreement with the province to enforce these regulations.

FNCIDA was developed with major projects and particular reserves in mind. However, the language of FNCIDA is sufficiently flexible to accommodate a regulation that would apply to water facilities on a number of First Nations within a particular province. The federal regulation would have to identify the particular First Nation and the reserves to which the regulation would apply.

FNCIDA is conditional upon First Nations opting in and the willingness of each province to extend and enforce provincial regulations on reserves.

FNCIDA does not provide sufficient authority for a comprehensive water regulatory framework on First Nations for three reasons. First, it requires opting into the FNCIDA as a whole, a step that First Nations may not be ready to take even if they want water regulation. Second, it is dependent upon agreement with the provinces to extend their jurisdiction to reserves. Third, it does not provide consistent protection across the country.

3.11 First Nations Land Management Act

The First Nations Land Management Act (FNLMA) gives member First Nations the rights, powers, and privileges of an owner in relation to their land. For such member First Nations, the land management provisions of the Indian Act cease to apply. [67]

A First Nation wishing to establish a land management regime under the Act must adopt a land code that includes rules for general use and occupancy of the reserve. These must cover matters such as procedures for transfer of land, accountability for revenues from resources, enactment of First Nations laws, conflicts in the management of First Nation land, a dispute settlement forum, expropriation, delegation of responsibility, exchanging First Nation lands and amending the code. [68]

Once the land code is adopted, bands under the FNLMA have the power to enact laws relating to environmental protection which would include laws relating to environmental assessment and environmental protection and the provision of local services and user charges for those services. [69]

The First Nation may provide for enforcement measures provided that they are consistent with federal laws, such as the power to inspect, search and seize, and to order compulsory sampling, testing and the production of information. [70]

The First Nation may create offences punishable on summary conviction and provide for the imposition of fines, imprisonment, restitution, community service and any other means for achieving compliance. [71]

Only those First Nations that have “opted in” to the FNLMA by signing the Framework Agreement on First Nations Land Management (February 12, 1996) and have developed a land code can take advantage of this law making power. Thirty-six First Nations, as listed in the Schedule to the FNLMA, have “opted in” and 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. No First Nations have enacted water regulations under the FNLMA.

The FNLMA likely provides sufficient authority for a water regulatory framework on First Nations reserves, for those Bands that have opted into the Act.

There are two weaknesses with using this Act. First, it makes opting into the entire Act a precondition to having water regulation, a proposition that imposes significant costs on bands. Second, the FNLMA does nothing to assist bands with the capacity building required to implement a modern water regulatory framework.

Footnotes:

Supra note 4. (return to source paragraph)
Water Act, supra note 4. (return to source paragraph)
Water Act, ibid. at s. 4 and 5. (return to source paragraph)
Water Act,. ibid. at s. 5. (return to source paragraph)
Water Act, ibid. at s. 11. (return to source paragraph)
Water Act, ibid. at s. 18. (return to source paragraph)
Water Act, ibid. at s. 30(1). (return to source paragraph)
CEPA, supra note 4. (return to source paragraph)
CEPA, ibid. at s. 64. (return to source paragraph)
Health Act, supra note 4 at s. 4(1). (return to source paragraph)
Potable Water Regulations for Common Carriers, C.R.C., c. 1105 [hereinafter Potable Water Regulations]. (return to source paragraph)
Potable Water Regulations, ibid. at s. 13. (return to source paragraph)
DIANDA, supra note 4. (return to source paragraph)
DIANDA, supra note 4 at s. 4. (return to source paragraph)
Indian Act, supra note 4 at s. 73(1)(f) and (k). (return to source paragraph)
Indian Act, supra note 4 at s. 81(1). (return to source paragraph)
Indian Act, ibid. at s. 81(1)(a) and (r). (return to source paragraph)
FNCIDA, supra note 4 at s. 4. (return to source paragraph)
FNCIDA, ibid. at s. 3(3). (return to source paragraph)
FNLMA, supra note 4. (return to source paragraph)
FNLMA, ibid. at s. 6(1). (return to source paragraph)
FNLMA, ibid. at s. 20(2)(c) and (d). (return to source paragraph)
FNLMA, ibid. s. 20(3). (return to source paragraph)
FNLMA, ibid. at s 22(1). (return to source paragraph)

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