Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
Bill S–8, An Act respecting the safety of drinking water on First Nation lands (short title: Safe Drinking Water for First Nations Act), was introduced in the Senate on 29 February 2012. The bill provides for the development of federal regulations governing the provision of drinking water, water quality standards and the disposal of waste water in First Nations communities. Importantly, the bill also establishes that federal regulations developed in this regard may incorporate, by reference, provincial regulations governing drinking water and waste water in First Nations communities.
Bill S-8 is the second legislative initiative to address safe drinking water on reserves. Its predecessor, Bill S-11, was introduced in the Senate on 26 May 2010, and it was referred to the Standing Senate Committee on Aboriginal Peoples for examination on 14 December 2010. From 2 February to 9 March 2011, the committee held nine meetings on the proposed legislation. As a result of widespread concerns about the bill, the legislation did not proceed to third reading, in order to allow for further discussions between government officials and First Nations representatives on proposed changes. Bill S-11 subsequently died on the Order Paper when Parliament was dissolved on 26 March 2011.
While Bill S-8 retains several of the features of former Bill S-11, particularly in areas to be covered by eventual federal regulations, the proposed legislation would address the application of those regulations as they relate to, among other things, source water; the liability of First Nations for non–band-owned water systems; the application to self-governing First Nations; and agreements with, and powers of, third parties. Non-derogation language is also included in the proposed legislation. Key differences between bills S-8 and S-11 are identified more precisely in section 2, “Description and Analysis,” in this document.
The delivery of safe drinking water to on-reserve First Nations communities is critical to the health and safety of the communities’ residents. Access to safe, clean, potable water is also closely tied to the economic viability of individual communities. For more than a decade, research has indicated that many First Nations communities lack adequate access to safe drinking water. A 2001–2002 assessment found that the quality of almost three quarters of drinking water systems in First Nations’ communities were at significant risk. In recent years, with the intention of addressing on-reserve water quality issues, the federal government has implemented a number of initiatives, including plans to bring forward water standards legislation to fill the existing regulatory gap governing the provision of drinking water on reserves. Progress reports suggest that, since 2006, there has been a steady reduction in the number of high-risk community water systems and priority communities.1
In Canada, water and waste water operations and systems are generally the responsibility of provincial and territorial governments.2 Over the years, the different jurisdictions have developed comprehensive regulatory regimes for the “protection of source water, water quality standards, and the oversight of water treatment plants and water delivery services.” 3 However, because section 91(24) of the Constitution Act, 1867 grants to the federal government exclusive jurisdiction over “Indians and lands reserved for the Indians,” provincial regulatory water standards do not apply to on-reserve First Nations communities.4 To date, there has been no federal legislative framework governing drinking water and waste water in First Nations communities beyond what is set out in federal policies, administrative guidelines, and funding arrangements.5
Federally, three departments are primarily responsible for delivering safe drinking water on reserves: Aboriginal Affairs and Northern Development Canada, Health Canada, and Environment Canada. Their roles can be summarized as follows: 6
First Nations communities, through their chiefs and councils, are responsible for the design, construction, operation and maintenance of their water systems, for which they assume 20% of the costs. They are also responsible for ensuring that water systems are operated by trained operators, for monitoring drinking water quality and for issuing drinking and boil water advisories.
Some of the challenges experienced by First Nations communities are similar to those in rural communities with small water systems.7 However, many First Nations experience other difficulties as well. In addition to the absence of a regulatory framework and the lack of clarity regarding roles and responsibilities as discussed above, core issues relating to the provision of safe drinking water on reserves include the high costs of equipment for, and construction and maintenance of, facilities in remote locations; infrastructure that is either obsolete, entirely absent or of low quality; limited local capacity and ability to retain qualified or certified operators; and the lack of resources to properly fund water and waste water system operation and maintenance.8
Federal policies, programs and funding related to drinking water on reserves were initiated in the 1960s and 1970s, as were parliamentary appropriations in this regard. The overall federal policy objective was to ensure that on-reserve residents had access to water facilities comparable with those for other Canadians living in communities of a similar size and location. However, comprehensive plans (including targets and resources) through which these objectives might be achieved were not yet in place.
In March 2003, following the results of the national on-site assessment of water treatment plants, the federal government launched the First Nations Water Management Strategy (FNWMS) to improve the quality and safety of drinking water on reserves. The Strategy – as well as its successor, the First Nations Water and Wastewater Action Plan (FNWWAP), which was launched in April 2008 to coincide with the termination of the FNWMS – represented a more focused and comprehensive multi-barrier approach (source to tap) to addressing the issues identified in the national assessment.9 The FNWWAP added several program enhancements to the original plan, including a national engineering assessment to determine the state of existing water and waste water facilities; consultations on a new federal legislative framework for safe drinking water; and investments in a national Waste Water Program. Budget 2010 extended the FNWWAP for two years, with funding ending on 31 March 2012. In addition to these initiatives, in March 2006, the federal government announced a “plan of action” to address drinking water concerns in First Nations’ communities, including a commitment to report to Parliament regularly on progress.
Federal funding commitments relating to First Nations water and water systems for the fiscal periods from 2003 to 2012 are as follows:
The Expert Panel on Safe Drinking Water for First Nations, established in June 2006, was one of the principal components of the federal government’s March 2006 Plan of Action for Drinking Water in First Nations Communities. The Panel held a series of public hearings across Canada throughout the summer of 2006 and tabled its report in November 2006.
In its report, the Expert Panel favoured the creation of a new federal statute establishing a single water standards regime for First Nations communities.10 The Panel noted that applying customary law could create “uncertainty, both in terms of how to get a comprehensive modern water regime and how long the process might take.” 11 It also expressed concern with the option of incorporating provincial regimes into new federal legislation. In particular, it noted that this appeared to be the weaker option owing to gaps and variations in those regimes which could lead to uneven results, with some reserve communities receiving the benefits of a more elaborate provincial regime than others; First Nations’ low acceptance of provincial regimes; and the complexity of involving another level of government in water management.12
According to the report, regulation alone would not ensure safe drinking water. The report indicated that regulations governing the provision of on-reserve drinking water must be accompanied by adequate investment in human resources and physical assets. It suggested that it is not “credible to go forward with any regulatory regime without adequate capacity to satisfy the regulatory requirements.” 13 Further, it stressed “regulation without the investment needed to build capacity may even put drinking water at risk by diverting badly needed resources into regulatory frameworks and compliance costs.” 14
In May 2007, the Standing Senate Committee on Aboriginal Peoples released a report concerning the delivery of drinking water on reserves.15 The Committee’s report recommended that the following two actions be undertaken by the Department of Indian Affairs and Northern Development: an independent needs assessment of both the physical and human resource needs of individual First Nations communities’ water and waste water systems, and comprehensive consultations on the legislative options proposed by the Expert Panel on Safe Drinking Water and the Assembly of First Nations.
The report echoed the view of the Expert Panel that sustained investment in the capacity of First Nations water systems, and in those operating those systems, is essential to ensure the delivery of safe drinking water on reserves.16 It also expressed concern that the Department was proceeding with a legislative approach that could create an uneven patchwork of regulations across the country.
Budget 2008 included an announcement that the federal government would undertake consultations with First Nations and provincial and territorial governments on the development of a regulatory regime to oversee water quality on reserves.17 Subsequently, in January 2009, a commitment to launch a consultative process on the “scope and elements of a proposed legislative framework” on water and waste water systems in First Nations communities was announced.18 From February to March 2009, the government held 13 engagement sessions across the country on the development of a proposed legislative framework for drinking water and waste water in First Nations communities.19 According to departmental documents, 544 individual First Nations members participated in these sessions. A discussion paper prepared for the engagement sessions indicated that participants would be “encouraged to discuss and provide input on the federal government’s preferred option of incorporating by reference (reproducing) provincial/territorial regulations.” 20
In addition to these engagement sessions, and as a result of concerns expressed during committee examination of former Bill S-11, government officials and First Nations organizations held further discussions on proposed changes to the legislation between October 2010 and October 2011.21
In July 2011, Aboriginal Affairs and Northern Development Canada released the findings of the National Assessment of First Nations Water and Wastewater Systems. The purpose of the assessment was to define current deficiencies and operational needs of water and wastewater systems, to identify long-term needs for each community and to review sustainable infrastructure development strategies for the next 10 years.22
Based on an inspection of the water and wastewater systems of 587 First Nations communities across the country (97% of all First Nations communities), the report found that of the assessed water systems:
The report further noted that the majority of high-risk water systems tend to serve smaller populations, affecting roughly 25% of on-reserve residents. The findings of the National Assessment suggest that training and retaining certified operators is critical to having well-run water and wastewater systems.
Of the 532 wastewater systems assessed, the report found that:
The National Assessment report estimates that the cost to upgrade existing water and wastewater systems to meet federal protocols and guidelines, as well as provincial standards and regulations, is $1.08 billion. It estimates that an additional $79.8 million is needed for non-construction costs, including, among other things, operator training and the development of emergency response and source water plans. Nationally, over 10 years, the combined projected capital and operating costs to meet the water and wastewater servicing needs of individual First Nations communities are estimated to be $4.7 billion, plus a projected operating and maintenance budget of $419 million annually.
As introduced, Bill S-8 contains 15 clauses. The bulk of the bill relates to the Governor in Council’s power to make regulations governing the provision of drinking water and the disposal of waste water on First Nations lands. The following review considers selected significant features of the legislation.
Clause 2(1) defines the following terms as they are used in the bill: “drinking water,” “drinking water system,” “First Nation,” “First Nation lands,” “Minister,” “provincial body,” “provincial official” and “waste water system.” The definition of “First Nation” may, under certain conditions set out in clause 14(1) of the bill, include those First Nations with settled self-government and comprehensive land claims agreements. Clause 2(2) establishes that the Governor in Council may make regulations for the purposes of this Act with respect to First Nations lands.
Clause 3 provides, for greater certainty, that the bill and its regulations do not have the effect of abrogating or derogating from the existing Aboriginal or treaty rights of Aboriginal peoples under section 35 of the Constitution Act, 1982, “except to the extent necessary to ensure the safety of drinking water on First Nation lands.” This clause appears to replace clause 4(1)(r) of the previous Bill S-11, which had more broadly contemplated that the regulations may define the relationship between the regulations and constitutionally protected Aboriginal and treaty rights, “including the extent to which the regulations may abrogate or derogate from those aboriginal and treaty rights.”
Clause 4(1) establishes that the Governor in Council, on the recommendation of the Minister, may make regulations governing the provision of drinking water and the disposal of waste water on First Nations lands. In particular, regulations may be made respecting the following items, provided for in clauses 4(1)(a) to (h):
Clause 4(2) further establishes that the Governor in Council, on the recommendation of the Minister of Health, may make regulations respecting standards for the quality of drinking water on First Nations lands. On the recommendation of the Minister and the Minister of Health, regulations may be enacted respecting:
These regulations may “confer any legislative, administrative, judicial or other power on any person or body” that the Governor in Council considers necessary to effectively regulate drinking water systems and waste water systems (clause 5(1)(b)). Regulations may also incorporate laws of the province by reference (clause 5(3)).
Clause 5(1) enumerates a long list of powers that may be included in the regulations (clauses 5(1)(a) to (r)). In this respect, among other powers, regulations may:
It should be noted that whereas the French version of clause 5(1) suggests that the list of regulation-making powers is not exhaustive (it states, “Les règlements pris en vertu de l’article 4 peuvent notamment …”), the English version suggests an exhaustive list of possible types of recommendations.23
Clause 5(2) of the bill provides that fines imposed under article 5(1)(f) of the Act may not exceed the amounts set by provincial law where a contravention would be an offence if it occurred outside First Nations lands.
Clause 5(3) of the bill provides that the regulations made under section 4 may adopt – or “incorporate by reference” – laws of a province. This clause also provides that the Governor in Council, when making regulations under the Act, may make such adaptations to the provincial regulations as it considers necessary. It is important to note that it is uncommon for provincial laws to be incorporated by reference into federal statutes, although one legislative level’s adoption by reference of the legislation of another legislative level is constitutional.24 Section 88 of the federal Indian Act, for example, incorporates by reference provincial “laws of general application,” thus making the provincial laws applicable, with some exceptions, as part of federal law. Among these exceptions are that such provincial laws may not conflict with any federal laws, and must yield to the terms of any treaty.25
As discussed earlier, the Expert Panel on Safe Drinking Water for First Nations that was created in June 2006 stressed the problems associated with incorporating provincial laws into federal law by reference, since variations in provincial standards might lead to unequal results at the national level in that some reserves would have an undue advantage because of provincial schemes that are more advanced than others.26
On that point, clause 5(4) specifically provides that the regulations may vary from province to province and may be restricted to specified First Nations.
Clause 5(5) stipulates that clause 4 does not authorize the making of regulations respecting the allocation of water supplies or the issuance of permits for the use of water for any purpose other than the provision of drinking water.
Clauses 6(1), (2) and (3) allow the Minister of Indian Affairs and Northern Development and the Minister of Health to enter into agreements with a province, corporation or other body for the administration and enforcement of regulations made under clause 4.
Clause 7 states that unless otherwise provided, regulations made under the bill prevail over any laws or by-laws made by a First Nation.
Clause 8 of the bill provides that the Statutory Instruments Act will not apply to an instrument made by a provincial official or body under the authority of a provincial law incorporated by reference into the regulations.
Clause 9(1) of the bill provides that a provincial official or body that exercises a power or performs a duty under the regulations is not a federal board, commission or other tribunal for the purposes of the Federal Courts Act. Under clause 9(2), however, the exercise of a power conferred by provincial law that is incorporated by reference into the regulations made under the bill is subject to review by, or appeal to, the courts of the province in the same manner and to the same extent as if the provincial law applied of its own force.
Clause 10 of the bill provides that fees, charges, fines or other payments collected by a person or body pursuant to the regulations made under the bill will not be considered to be “Indian moneys” for the purposes of the Indian Act or “public money” for the purposes of the Financial Administration Act.
Clause 11 of the bill limits the liability of various actors for certain acts or omissions that occur in the performance of their duties.
To that end, clause 11(1) provides that should a minister of the Crown or a federal employee commit an act or omission in a given province in the exercise of a power or the performance of a duty under the regulations, the Government of Canada and the minister or employee are entitled to the limits on liability, defences and immunities provided under the Crown Liability and Proceedings Act. In addition, the federal government is also entitled to the same limits on liability, defences and immunities as would apply to a provincial government in the exercise of such a power or the performance of such a duty under the laws of the province. The minister or federal employee is entitled to the same limits on liability, defences and immunities as those that would apply to a provincial official exercising such a power or performing such a duty under the laws of the province, unless otherwise provided by the regulations.
Clause 11(2) deals with acts or omissions by a provincial official or body that occur in the exercise of a power or the performance of a duty under the regulations. In such cases, the Government of Canada is entitled to the same limits on liability, defences and immunities as those that would apply in the exercise of such a power or the performance of such a duty under the laws of the province. The official or body is also entitled to the limits on liability, defences and immunities as those that would apply under the laws of the province, unless otherwise provided by the regulations.
Clause 11(3) states that in the case of an act or omission that occurs in a given province in the exercise of a power or the performance of a duty under the regulations by a person or body other than the Government of Canada, a minister of the Crown in right of Canada, an employee in the federal public administration or a provincial official or body, no one has a right to receive any compensation, damages, indemnity or other relief from the federal government. The person or body in question is entitled to the same limits on liability, defences and immunities as those that would apply to a person or body exercising such a power or performing such a duty under the laws of the province, unless otherwise provided by the regulations.
Clause 12 of the bill provides that no payment may be made under an appropriation authorized by Parliament to satisfy any claim arising out of an act or omission referred to in clause 11(3).
Clause 13 of the bill indemnifies the Government of Canada. Under that clause, no civil proceeding may be brought, no order may be made and no fine or monetary penalty may be imposed against the federal government under the regulations.
Under clause 14(1) of the bill, any Aboriginal body that is a party to a land claims agreement or self-government agreement with Canada given effect by an Act of Parliament and the disposition of whose lands is not subject to the Indian Act or the First Nations Land Management Act may request that the Governor in Council make regulations:
Clause 14(2) of the bill provides that for an Aboriginal body named in column 1 of the schedule to the Act, the bill and the regulations made under the bill prevail over any land claims or self-government agreement to which the Aboriginal body is a party, in the event of a conflict or inconsistency between the bill and any such agreement. This clause appeared as clause 6(2) in the previous Bill S-11.
Clause 15 of the bill provides that the provisions of the bill come into force on a day or days to be fixed by order of the Governor in Council.
To date, commentary on Bill S-8 has been limited. However, a number of First Nations organizations, notably the Chiefs of Ontario, the Nishnawbe Aski Nation, the Assembly of Manitoba Chiefs, and Treaty Seven nations in Alberta have signalled continued concerns with the proposed legislation, citing, among other things, the need to address infrastructure and capacity issues before introducing federal regulations.27
Previously, several First Nations participating in the engagement sessions on the government’s proposed legislative approach expressed concern that the introduction of water standards legislation, without adequate investment to build capacity, could place First Nations drinking water at further risk by increasing costs associated with monitoring, reporting and compliance, as well as with potential financial penalties related to enforcement.
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
(522 kB, 79 pages), Vol. 1, Department of Indian Affairs and Northern Development, November 2006 [Expert Panel], p. 16. [ Return to text ] (175 kB, 17 pages), Final Report of the Standing Committee on Aboriginal Peoples, May 2007. [ Return to text ] (1.5 MB, 416 pages), 26 February 2008, p. 158. [ Return to text ] (331 kB, 20 pages), for summary reports of the regional engagement sessions. These reports do not appear to be available on the AANDC website. [ Return to text ] (3.7 MB, 77 pages), Prepared for the Department of Indian Affairs and Northern Development, April 2011. [ Return to text ] (176 kB, 2 pages) News release, 1 March 2012. [ Return to text ]© Library of Parliament