Frequently Asked Questions

Safe Drinking Water for First Nations Act

Q1. Why is legislation needed?

A1. The Government of Canada agrees that First Nations should expect, as do all Canadians, to be provided safe, clean drinking water. It is an important health and safety issue. That is why the government is moving forward with this legislation. This will enable the government to work with First Nations to develop regulations that will safeguard First Nations' drinking water within First Nation communities.

However, there is no legislative basis for ensuring compliance with the Protocol.

Provinces and territories have legislation for drinking water. The federal government does have a Protocol for Safe Drinking Water in First Nation Communities (the Protocol), which sets out clear standards for the design, operation and maintenance of drinking water systems.

Q2. What does the government mean when it says this is “enabling” legislation?

A2. The legislation would give authority to the federal government to develop regulations governing drinking water and wastewater in First Nation communities.

Q3. What does “incorporation by reference” mean?

A3. Incorporation by reference is a legal mechanism for including in a statute or regulation material that is found in another document (e.g. law of a different jurisdiction) without reproducing that material word for word in the statute or regulation. The referentially incorporated material would then become a federal law. The Government of Canada, in collaboration with First Nations, wants to develop federal regulations that will provide a comparable level of protection for drinking water in First Nation communities as enjoyed by other Canadians.

To help do this, since provinces and territories already have existing regulations governing drinking water and wastewater, the federal government would review these existing regulations to identify areas that can be adapted into federal regulations, while at the same time, allowing for regional differences, including the recognition of unique water challenges facing many First Nation communities.

Q4. Does the federal government's bill mean that First Nations will be placed under provincial or territorial jurisdiction for drinking water and wastewater within First Nation communities?

A4. No. This legislation would enable the federal government to develop federal regulations for drinking water and wastewater within First Nation communities.

Referential incorporation of provincial or territorial laws would not take jurisdiction from, nor give jurisdiction to, provinces or territories. The federal government would review existing provincial and territorial regulations to identify any areas that could be adapted into federal regulations.

Q5. What are the benefits of the proposed approach to incorporate by reference provincial/territorial regulations and adapt them, as necessary?

A5. The government's proposed approach would provide First Nation communities with drinking water and wastewater standards comparable with standards off reserve. It would also offer more opportunities for First Nation communities and municipalities to work together in areas such as training and to share water treatment systems. This approach would establish a common basis for evaluating the effectiveness of the operation, design and maintenance of water and wastewater systems.

The proposed approach will also make room for regional flexibility, as federal regulations could vary from province to province and territory to territory.

Q6. How would proposed new legislation affect Aboriginal and treaty rights?

A6. Section 35 of the Constitution Act, 1982 protects existing Aboriginal or treaty rights from infringement by legislation, unless that infringement is justified. The Constitution Act takes precedence over all other federal laws, including this legislation.

Q7. Would the legislation apply to all First Nations?

A7. The Act would automatically apply to all First Nation communities, except self-governing First Nations that are operating under comprehensive self-government agreements with the Government of Canada. However, where there is an agreement in writing between the Minister and a self-governing First Nation that the legislation should be made applicable to them, the Minister will add the name of this First Nation, by Order, to a schedule of the Act. It is also important to note that, while the Act would apply to all First Nation communities across Canada (including those located in the Yukon and the Northwest Territories) it would not apply in Nunavut. This is because Nunavut has no First Nation reserves located within its territory.

Q8. How would compliance with the federal regulatory regime be enforced?

A8. The federal government will work with First Nations, provinces and territories to determine a compliance regime for the proposed regulations. Options will be discussed as part of the consultation process on the development of a federal regulatory regime.

Q9. How would implementation of the regulations work?

A9. The Government of Canada recognizes that many First Nation communities face unique water challenges and the ability to meet federal regulatory requirements may vary from province to province or territory to territory. The federal government, in recognition of these unique challenges, will seek a phased-in approach for regulations so that implementation coincides with a community's ability to meet regulatory requirements. A phased approach to implementation will also help to ensure First Nations and system operators have time to familiarize themselves with the new regulatory environment.

Q10. How has the federal government involved First Nations in the development of this legislation?

A10. The federal government has maintained an open dialogue on safe drinking water and wastewater issues within First Nation communities, by engaging with First Nations on viable options for a regulatory regime and on the development of a federal legislative framework. The Government of Canada will continue to seek collaboration with First Nations through each phase within the development of a federal regulatory regime.

Q11. What type of consultation was undertaken to address water issues on reserves?

A11. From May to July 2008, departmental officials, in collaboration with Health Canada, met with regional First Nation organizations, Assembly of First Nations officials, as well as provincial/territorial officials, in order to prepare for future engagement sessions on a legislative framework. Officials from Environment Canada and the Assembly of First Nations also attended many of these information sessions. First Nations expressed support for continued discussions on the development of legislation and regulations.

From February 2009 to March 2009, a series of engagement sessions took place on the proposed approach to legislation with First Nation communities, regional First Nation organizations and provincial/territorial officials. These sessions offered a forum for participants to suggest solutions and recommendations on how to best address the regulatory gap that presently exists regarding drinking water and wastewater in First Nation communities. To facilitate discussion, a paper was distributed to participants in advance of the sessions outlining the Government's proposed legislative option of incorporation by reference of provincial/territorial regulations with adaptations, as required, to meet the needs of First Nation communities.

Those not attending the sessions were invited to submit written comments on a legislative framework. In addition, support was provided to regional First Nation organizations to develop regional impact analyses.

In fall/winter 2009-2010, the federal government met with regional First Nation Chiefs and First Nation organizations to discuss specific regional issues regarding the proposed legislative initiative. These regional issues were raised during the engagement sessions held in winter 2009, and within impact analyses and correspondence.

Q12. How would First Nations be involved in the development of regulations?

A12. If the legislation receives Royal Assent, the Government of Canada will undertake further consultation with First Nations, regional First Nation organizations and provinces/territories on the development of the regulatory regime.

Q13. What exactly did the department do during engagement sessions held in early 2009?

A13. As part of the consultation process leading to the development of a regulatory regime for drinking water and wastewater in First Nation communities, the government held engagement sessions on the development of a federal legislative framework for drinking water and wastewater in First Nation communities. These sessions offered a forum for participants to suggest solutions and recommendations on how best to address the regulatory gap that presently exists regarding drinking water and wastewater in First Nation communities. Participants included individuals, representatives from First Nation communities, regional First Nation organizations and provincial/territorial officials.

Discussions during the sessions explored, but were not limited to the federal government's proposed option of incorporation by reference of existing provincial/territorial regulations and adaptation as required, to meet the needs of First Nation communities. The development of a new federal statute referencing existing legislation in provinces and territories was one of three viable options presented by the Expert Panel on Safe Drinking Water for First Nations in their final report in 2006, compiled after a public hearing process across Canada.

Q14. How many First Nation communities did the government engage with on the development of a legislative framework?

A14. Each First Nation community across the country was invited to send both a political and technical representative to attend the engagement sessions held from February to March 2009. In total, the engagement sessions involved participation of 544 First Nation individuals.

Q15. What investments has the government made to improve water quality in First Nation communities across the country?

A15. Between 2006 -2012 the Government of Canada will have invested $2.3 billion in First Nation water and wastewater infrastructure. That funding includes:

• On-going annual departmental A-base investments of approximately $200 million for water and wastewater programs in First Nation communities
• $270 million invested through the First Nations Water Management Strategy
• $60 million since 2006 through the INAC Plan of Action for Drinking Water in First Nation Communities
• $660 million through the First Nations Water and Wastewater Action Plan between 2008-2012
• $183 million over 2009-2011 through Canada's Economic Action Plan (CEAP)

In March 2006, the Minister of Indian Affairs and Northern Development Canada and Federal Interlocutor for Métis and Non-Status Indians, supported by the Ministers of Health and Environment and the National Chief of the Assembly of First Nations, announced a Plan of Action for Drinking Water in First Nations Communities. Budget 2006 provided $60 million over two years to help reach the objectives outlined in the Plan of Action, which included issuing a clear protocol on water standards; ensuring mandatory training and oversight of water systems by certified operators; addressing the drinking water concerns of high-risk systems, starting with 21 priority communities; creating an expert panel that will provide options for a regulatory regime for drinking water in First Nation communities; and committing to future reporting on the progress of the Plan of Action.

In April 2008 the federal government announced a $330 million two-year investment in a First Nations Water and Wastewater Action Plan (FNWWAP). This initiative extended most activities under the Plan of Action, and introduced several program enhancements such as the National Assessment of First Nations Water and Wastewater Systems, doubling the funding for the Circuit Rider Training Program, and creating standards to guide First Nations in the planning, design and operation of water and wastewater systems including wells and septic systems.

As part of Canada's Economic Action Plan 2009, the Government provided additional targeted funding of $183 million over two years for the completion of drinking water and wastewater infrastructure projects to address health and safety priorities in 18 First Nation communities.

To build on this progress, Budget 2010 extended the First Nations Water and Wastewater Action Plan for two more years for an additional $330 million.

Q16. What progress has been achieved from these investments?

A16. The Government of Canada has made substantial improvements since 2006 when the Plan of Action of Drinking Water in First Nation Communities was launched. For example, there were 193 high-risk drinking water systems in 2006. Today, that number has been significantly reduced to 49 systems. In addition, out of the 21 communities identified as priorities, which meant that the community had both a high-risk drinking water system and a drinking water advisory, 18 have been removed from the list and action plans are in place for the remaining.

The number of water treatment operators with their first level of certification or greater is currently at 60%, representing 683 out of the 1,140 water and wastewater system operators across the country.

The Government is working on improvements to the Protocol for Safe Drinking Water in First Nation Communities (the Protocol), and finalizing the protocol on wastewater treatment and the protocol on decentralized systems. As well, allocations have been made for water and wastewater projects for 18 First Nation communities across Canada through funding provided under Canada's Economic Action Plan 2009.

The Government of Canada is currently undertaking the National Assessment of First Nation Water and Wastewater Systems. Site visits will be completed in November 2010 with results available in 2011. The assessment will provide a more accurate account of the current state of water and wastewater systems on reserves and enable both First Nations and Indian and Northern Affairs Canada (INAC) to focus resources on priorities required to address those identified needs for each community.

In addition, the Government has developed drinking water advisory communication products which include public service announcements, posters and door hangers which provide clear information about what residents should do to protect their health if a drinking water advisory has been issued in the community. The Government has also increased its own capacity and the capacity of First Nation communities to sample and test drinking water quality at tap in order to protect public health.

As well, the Government has developed a national wastewater program framework in order to reduce public health risks associated with wastewater.

Real and tangible progress continues to be made and moving forward with this legislation is another important step for making further progress. The Government of Canada is committed to ensuring First Nation communities have drinking water comparable to other Canadian communities.