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

New Federal Legislation: A Bridge to Self-Government

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

John Graham, of the Institute on Governance, emphasized in his policy brief entitled Safe Water for First Nations: Charting a Course for Reform, that any reform package should provide a bridge to self-government. [72]

The advantage of a new federal act is that it can be a bridge to self-government by incorporating some of the elements of self-government, and can provide a broader role for First Nations.

New First Nations water legislation could incorporate the components Graham identifies to guide initiatives with First Nations:

Principles – Is there a clear statement of principles in the initiative of how the relationship is to be conducted?
Strategic Vision – is the long term goal of the initiative compatible with the eventual implementation of the inherent right to self-government?
Ongoing machinery – Does the initiative establish an on-going machinery to help manage the relationship with first nations?
Review – Does the initiative call for a review of relationships being established? [73]

To apply strategic vision, Graham asks whether the initiative helps to move affected First Nations along the "governance continuum." This continuum, developed by INAC, has at one end a colonial agenda founded on s. 91(24) of the Constitution Act, 1867 and the Indian Act, and at the other end comprehensive self-government. In the middle are the FNLMA, which places additional regulatory powers in the hands of First Nations to manage land and protect the environment, and the First Nations Fiscal and Statistical Management Act (FNFSMA).

Key features of the FNFSMA include:

It was " First-Nations led" in that it was developed with a group of First Nation leaders.
Its preamble acknowledges that it is based on the First Nations' inherent right of self-government: " Whereas the Government of Canada has adopted a policy recognizing the inherent right of self-government as an aboriginal right and providing for the negotiation of self-government…"
It gives First Nations broad bylaw-making powers to make laws to tax reserve lands, including taxation of services and business activities, as well as the ability to impose development cost charges.
The Act transfers approval of First Nations tax bylaws from the Minister to the First Nations Tax Commission.
Under the Act, First Nations have powers to make laws on tax assessment inspections and enforcement, and can set up their own Assessment Review Board.
The Act establishes the First Nations Financial Management Board to assist First Nations to develop their financial management capacity by providing training and financial advisory services and conducting assessments of the financial practices and financial health of First Nations. [74]

This option, by empowering First Nations and building First Nations-led bodies, serves to accomplish the goal of establishing a bridge to self-government. It commences the building of capacity so that "at some point in the future, the First Nation unit could become part of some First Nation government and would bring with it the experience, skills and contacts that would otherwise take years to build." [75]

4.1 What a New Law Might Look Like

A new law would require the government to assess its consultative and accommodation obligations as enunciated by two Supreme Court of Canada cases, Haida Nation and Taku River [76]. Regardless of the government's conclusion on its consultative obligations, new legislation would benefit from engaging First Nations in its development from the outset

Federal legislation could establish uniform water standards across Canada for all First Nations.

It could recognize that the provision of sewage and water services is a joint function of the federal departments and First Nations, and clarify the roles of existing partners. Given resource concerns of First Nations, it would be useful, almost necessary for INAC's funding role to be mandated in legislation.

Accountability would be ensured by 1) making the Act bind the Crown and 2) requiring each partner to exercise a duty of care in discharging its responsibilities.

The Governor in Council could also have powers to make regulations 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.

4.1.1 Potential Role for First Nations Water Commission and Tribunal

A First Nations Water Commission could be created. Comprising a majority of First Nations representatives in the water sector, it could be given important roles in the management of water on First Nations' reserves.

The First Nations Water Commission could be comprised of members appointed by Order in Council on the recommendation of the Minister. Operating arms-length from INAC and the individual First Nations, the Commission could be responsible for licensing water and wastewater facilities, inspection, investigation, enforcement and policy advice.

Given the case law on inspection and investigation and the importance of keeping that distinction separate, the preferred structure would be to ensure that the inspection and investigation functions within the Commission were kept completely separate. [77]

It would be important for the First Nations Water Commission to have the power to ensure that INAC provides adequate funding to construct and operate in accordance with approvals. This could be accomplished through approval conditions that could require improvements to the facility, together with the legislative requirements that INAC fully and adequately funded the facility.

Accountability could also be assisted through the power of the First Nations Water Commission to investigate complaints arising from the performance by any of the partners of their roles.

Through its consultative role, the Commission would have the opportunity to advise the federal government about incorporation of aboriginal customary laws. It could also improve the capacity of First Nations over water issues and lead to the eventual implementation of self-government over water. Having a First Nations Water Commission with a trained staff would build the profile of water professionals within the First Nations community.

The Commission could report annually to Parliament and the AFN about the status of water on First Nations reserves. In addition to the annual report, a periodic House of Commons Committee review could serve to identify the need for improvements to the legislation.

While case law allows for the overlap of investigative, prosecutorial and appeal functions where its enabling statute clearly authorizes it, the preferable approach is to separate the adjudicative function and form a separate First Nations Water Tribunal. [78] Its role would be to hear appeals of approvals, orders, and unresolved complaints from First Nations members and the federal government.

Such an approach would provide some protection against claims of reasonable apprehension of bias, and increase the likelihood that the bodies would withstand such challenges in the context of judicial review. [79]

Appendix A provides a summary of possible elements of First Nations drinking water legislation. Appendix B is a flow chart illustrating the potential roles of a First Nations Water Commission and First Nations Water Tribunal.

For other legal considerations on the application of new federal legislation to First Nations under self-government and land claim agreements, please see Section 7.2 below.

Footnotes:

J. Graham, Safe Water for First Nations: Charting a Course for Reform, IOG Policy Brief No. 14 (January 2003) [hereinafter Safe Water]. (return to source paragraph)
J. Graham and J. Wilson, Towards Sound Government-to-Government Relationships with First Nations, IOG Policy Brief No. 21 (October 2004) at 3-5 [hereinafter Towards Sound Government]. (return to source paragraph)
First Nations Fiscal and Statistical Management Act, R.S.C., 2005, c. 9 [hereinbefore and hereinafter FNFSMA]. (return to source paragraph)
Towards Sound Government, supra note 77 at 4. (return to source paragraph)
Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550 (S.C.C.) [hereinafter Taku River]; Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 (S.C.C.) [hereinafter Haida Nation]. (return to source paragraph)
R. v. Jarvis, [2002] 3 S.C.R. 757 (S.C.C.) [hereinafter Jarvis]; R. v. Ling, [2002] 3 S.C.R. 814 (S.C.C.) [hereinafter Ling]. (return to source paragraph)
Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301 (S.C.C.) [hereinafter Brosseau]; Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884 (S.C.C.) [hereinafter Bell Canada]; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781 (S.C.C.) [hereinafter Ocean Port]. (return to source paragraph)
R. v. Lippe (1991), 64 C.C.C. (3d) 513 (S.C.C.) [hereinafter Lippe]. (return to source paragraph)

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