Frequently Asked Questions - Safe Drinking Water for First Nations Act
Q.1. Why is legislation needed?
A.1. Access to safe drinking water, the effective treatment of wastewater and the protection of sources of drinking water on First Nation lands is a priority for the Government of Canada. First Nations should expect, as do all Canadians, access to safe, clean and reliable drinking water. The Government is moving forward with this legislation in order to ensure that drinking water and wastewater standards on First Nation lands are comparable to the standards enjoyed by all Canadians.
Recommendations for enforceable standards and protocols to better safeguard on reserve water quality on First Nation lands have been made numerous times. The Office of the Auditor General, the Expert Panel on Safe Drinking Water for First Nations, the Standing Senate Committee on Aboriginal Peoples and the National Assessment of First Nations Water and Wastewater Systems have all called for enforceable standards.
While provinces and territories each have their own legally binding safe drinking water standards, First Nation communities did not have comparable legally enforceable protections. The Government's Protocols for Safe Drinking Water in First Nation Communities set out clear standards for the design, operation and maintenance of drinking water systems but are not legally enforceable. The Government firmly believes that First Nations should have the same health and safety protections as other Canadians, and that a clear regulatory framework will ensure these protections.
Q.2. Is the legislation different from the Bill S-11, Safe Drinking Water for First Nations Act?
A.2. While the spirit of the new legislation is the same as former Bill S-11, based on feedback received from First Nations, Senators and Members of Parliament, the Government incorporated significant changes to Bill S-8. The new legislation lays out the same areas for future federal regulations as the former Bill S-11. Changes and improvements to the previous bill were made to clarify the intent and scope of the Act. These, and a recent change made to Bill S-8, were made based on feedback received from First Nations and Parliamentarians over the past few months, which include:
- addition of language in the preamble on the Government's commitment to work with First Nations on the development of future federal regulations stemming from the legislation;
- clarification that any regulation on source water on First Nation lands would be to protect it from contamination;
- clarification that regulations would not include the power to allocate water supplies or licence users of water for any purpose other than the purpose of drinking water;
- clarification that only the powers necessary to effectively regulate drinking water and wastewater systems would be conferred on any person or body;
- removal of language that could be interpreted as powers to compel First Nations into an agreement with third parties to manage water and wastewater on First Nation lands;
- clarification that third parties that own systems on First Nations lands, not First Nations, will be held liable;
- clarification that the legislation could apply to First Nations that are signatories to self-government agreements at their request; and
- inclusion of a non-derogation clause addressing the relationship between the legislation and Aboriginal and treaty rights under section 35 of the Constitution Act, 1982.
- during committee study of Bill S-8, a further amendment was made to remove the opt-in provisions to ensure respect for self-government and land claims agreements.
Q.3. Will First Nations benefit from this legislation?
A.3. The Government and First Nations both believe that First Nation communities should have access to the same quality of clean and reliable drinking water as Canadians outside of First Nation lands. Through regulations, the roles and responsibilities of all parties involved in drinking water in First Nation communities will be clearly identified. The legislation will help protect the health and safety of First Nation communities by enabling the development of regulations for drinking water on First Nation lands and much-needed enforceable standards.
Q.4. Will the Government continue funding water and wastewater systems on reserve?
A.4. While funding will not be part of the Act, the Government will continue to make important and strategic investments in infrastructure, monitoring and capacity. Between 2006 and 2014, the Government of Canada will have invested approximately $3 billion to support First Nation communities in managing their water and wastewater infrastructure and in related public-health activities. This includes $330.8 million committed in Economic Action Plan 2012 over two years to help sustain progress made to build and renovate water infrastructure on reserve and to support the development of a long-term strategy to improve water quality in First Nation communities.
Between 2006 and 2010, the Government invested in over 130 major projects and funded maintenance and operations over 1,200 water and wastewater treatment projects. In 2011-2012, 402 major and minor First Nation water and wastewater infrastructure projects were started, and 32 major capital projects to build or significantly upgrade water and waste systems were completed.
Creating regulations will take time and they will be implemented over a number of years. This will provide time for the Government and First Nations to bring drinking water and wastewater infrastructure monitoring activities and capacity to the level required to meet future federal regulations.
Q.5. What is enabling legislation and will it bind First Nations to a single national standard for water?
A.5. The Act is enabling legislation, which is a law that gives the Government the authority to develop regulations where legally-binding standards will be found. The Government knows that a one-size fits all approach to national standards is not appropriate. In the legislation, the list of issues is extensive and the language is worded in broad terms so that regulations can be created to address a variety of needs and requirements. Standards will be developed through cooperative regulatory development. The Government, in partnership with First Nations, will begin development of regulations region by region after the legislation is passed. Developing regulations will take time and they will be implemented over a number of years in order to develop First Nation capacity and infrastructure.
Q.6. Will incorporation by reference of provincial/territorial laws impose provincial/territorial jurisdiction on First Nation lands?
A.6. No. Building upon provincial and territorial regulations will not give provinces or territories control over drinking water and wastewater systems on First Nation lands. Building upon provincial and territorial regulations only allows the Government and First Nations to use existing provincial and territorial water regulations as a starting point to identify areas that can be used as federal regulations, and adapt them according to regional differences. The Act will enable development of federal regulations under federal law.
Building upon provincial and territorial regulations will make standards in on- and off-reserve communities comparable. It may also make it easier for First Nations to partner with neighbouring communities on drinking water and wastewater management, as they will be meeting similar standards. They could also partner or exchange best practices on inspections, training and enforcement.
It is the Government's preference to develop federal regulations and standards using incorporation by reference, with regional adaptations where needed.
Q.7. Is there a possibility that future federal regulations will impact Aboriginal and treaty rights?
A.7. The Act will not infringe on Aboriginal and treaty rights other than to the extent necessary to take health and safety measures in order to protect the drinking water in First Nation communities.
The Constitution Act takes precedence over all other federal laws, including this legislation.
However, in order to ensure clean drinking water for First Nations, practical measures may need to be taken, measures that may impact certain Aboriginal and treaty rights. This work will be conducted in collaboration with First Nations.
Q.8. Could First Nations have a role in compliance and enforcement of future federal regulations?
A.8. Yes. The federal government will work with First Nations, provinces and territories to develop federal regulations. Options for compliance and enforcement will be discussed as part of the consultation process on the development of future federal regulations.
Q.9. Will First Nations be involved in the development and implementation of regulations?
A.9. Yes. The Government has committed in the preamble of the Act to work with First Nations to develop federal regulations and standards, based on the needs of each region. The Government 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.
Developing federal regulations will take time and regulations will be implemented over a number of years. This will provide time for the Government and First Nations to bring drinking water and wastewater infrastructure, monitoring activities and capacity to the level required to meet future federal regulations.
The Government will continue to provide funding to improve infrastructure and capacity related to water and wastewater services on First Nation lands.
Q.10. Were First Nations involved in the development of this legislation?
A.10. Yes. The federal government has always maintained an open dialogue on safe drinking water and wastewater issues within First Nation communities and leaders. AANDC met with the leadership of regional First Nation organizations on the legislation and on the options for developing regulations. These discussions included issues and concerns regarding the former Bill S-11 and how the new legislation could be modified to address those concerns.
In addition, a series of engagement sessions on a proposed approach to legislation took place with First Nation communities, regional First Nation organizations and provincial/territorial officials in 2009. 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 the participation of 544 First Nation individuals. 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.
These outreach efforts demonstrate the Government of Canada's commitment to work with willing partners to achieve the goal of better water quality on First Nation lands.
Discussions were also undertaken between October 2010 and October 2011 to address concerns regarding previous Bill S-11.
As a result of this engagement, the Government made 10 changes to Bill S-11 based on feedback from First Nations before introducing it as Bill S-8. During committee study of Bill S-8, a further amendment was made to remove the opt-in provisions to ensure respect for self-government and land claims agreements.
Q.11. Does the legislation include provisions to protect water sources on reserve?
A.11. Yes. Federal regulations and standards that protect water sources of drinking water which are located on First Nation lands from contamination will be developed under the legislation. During the engagement with First Nations, provinces and territories, and other stakeholders on the development of federal regulations, the Government will use this opportunity to also discuss the protection of sources of drinking water outside of First Nation lands.
Q.12. Will provincial or territorial water allocation laws be imposed on First Nations, thus infringing on Aboriginal and treaty rights?
A.12. No. The legislation will not impose provincial or territorial water allocation or licensing laws on First Nation lands.
Q.13. Will the legislation address liability?
A.13. Yes. The legislation and subsequent federal regulations will also clarify the roles of all parties, including third parties (such as private companies) operating water and wastewater systems on First Nation lands. The responsibilities and corresponding potential liabilities of these parties will be similar to their responsibilities and corresponding potential liabilities in provinces and territories.
Q.14. When and how will the development of regulations begin?
A.14. The primary objectives of federal regulations to be developed under the Act are to improve health and safety for residents of First Nation lands by ensuring access to safe drinking water, effective management of wastewater, and source water protection on reserve. To achieve these objectives, the Federal Government will work together with First Nations, provincial and territorial governments and other stakeholders, to develop federal regulations and standards on a region by region basis. Work is already underway with the Atlantic Policy Congress of First Nations Chiefs.
The regulatory development process will include opportunities for sharing information with, and seeking feedback from First Nations. Regulations will be phased-in over a number of years so that implementation coincides with a community's ability to meet regulatory requirements. The Government of Canada is committed to ensuring First Nations have the opportunity to meaningfully contribute to the development of regulations and standards.
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