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, there are currently no legally enforceable protections for First Nation communities. The Government's Protocols for Safe Drinking Water in First Nation Communities (the Protocols) are: The Protocol for Centralised Drinking Water Systems in First Nations Communities; the Protocol for Centralised Wastewater Systems in First Nations Communities; and the Protocol for Decentralized Water and Wastewater Systems in First Nations Communities.
The Protocols set out clear standards for the design, operation and maintenance of drinking water systems. However, there is no legal basis for ensuring compliance with the Protocols. 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 proposed legislation different from the former Bill S-11, the Safe Drinking Water for First Nations Act?
A.2. While the spirit of the new proposed 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 the current bill. The new proposed legislation lays out the same areas for future federal regulations as the former Bill S-11. However, to respond to input received from First Nations over the last few months, there are some key differences between Bill S-11 and the new proposed legislation including:
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. Legislation will clearly lay out the roles and responsibilities of all parties involved in drinking water in First Nation communities. The proposed 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 of 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 this bill, the Government will continue to make important and strategic investments in infrastructure, monitoring and capacity.
Between 2006 and 2013, the Government of Canada will have invested approximately $2.5 billion in water and wastewater infrastructure and related public health activities to support First Nation communities in managing their water and wastewater systems. This includes approximately $1.25 billion in water and wastewater infrastructure funding transferred by Aboriginal Affairs and Northern Development Canada to First Nations and First Nation organizations between April 1, 2006, and March 31, 2010, for drinking water and wastewater infrastructure. A total of 130 major water and wastewater projects were completed over this four year period. Almost 120,000 individuals living in these First Nation communities have benefitted from these investments.
Creating regulations will take time and they will be implemented over a number of years in order to first develop First Nation capacity and infrastructure.
Q.5. What is enabling legislation and will it bind First Nations to a single national standard for water?
A.5. The bill 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. Incorporation by reference will not give provinces or territories control over drinking water and wastewater systems on First Nation lands. Incorporation by reference 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 bill will enable development of federal regulations under federal law.
Using incorporation by reference 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. 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.
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. Will the legislation apply to First Nations under historic treaties?
A.8. Yes. The legislation would lead to federal regulations and standards on lands that are administered under the Indian Act or the First Nations Land Management Act. This includes First Nations under historic treaties.
This could change if a First Nation entered into a self-government agreement. For First Nations negotiating a self-government agreement, legislation and federal regulations will apply until the final agreement comes into force. The negotiating First Nation will be able to identify in its self-government agreement whether it chooses to continue using the federal regulations and standards under the legislation or its own requirements.
Q.9. Why do self-governing First Nations get to choose whether or not to be part of this regime?
A.9. Self-governing First Nations have removed themselves from the Indian Act and have assumed responsibility for local infrastructure. Self-government agreements set out the powers of Aboriginal groups to govern their internal affairs and assume greater responsibility and control over the decision-making that affects their communities, including the provision of drinking water.
Self-governing First Nations work with municipal, provincial and territorial governments to ensure that appropriate water standards are in place to meet community needs. Typically, these communities adopt provincial or territorial standards. Effectively, this means that self-governing First Nations have already filled the regulatory gap regarding safe drinking water. Nonetheless, should self-governing First Nations find the regulatory regime to be developed under the proposed legislation appropriate for their circumstances, they may opt-in to the proposed legislation.
For First Nations without self-government agreements, a regulatory gap exists for their communities, since existing provincial or territorial drinking water regulations do not currently apply on their lands. The proposed legislation and future regulations seeks to fill this gap and to ensure that First Nations under the Indian Act have access to safe, clean and reliable drinking water.
Should a First Nation finalize a self-government agreement with the Government, they would identify in their agreement whether they choose to continue using the federal regulations and standards under the legislation, or make other arrangements.
Q.10. Could First Nations have a role in compliance and enforcement of future federal regulations ?
A.10. Yes. The federal government will work with First Nations, provinces and territories to develop federal regulations. Options for enforcement will be discussed as part of the consultation process on the development of future federal regulations.
Q.11. Will First Nations be involved in the development and implementation of regulations?
A.11. Yes. The Government has committed in the bill to work in partnership 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.12. Were First Nations involved in the development of this legislation?
A.12. 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.
Q.13. Does the proposed legislation include provisions to protect water sources on reserve?
A.13. 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 proposed 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.14. Will provincial or territorial water allocation laws be imposed on First Nations, thus infringing on Aboriginal and treaty rights?
A.14. No. The proposed legislation will not impose provincial or territorial water allocation or licensing laws on First Nation lands.
Q.15. Will the proposed legislation address liability?
A.15. Yes. The proposed 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.