Backgrounder - Safe Drinking Water for First Nations Act

The Government of Canada has introduced a bill in the Senate to ensure the provision of safe and reliable drinking water for First Nations.

The enabling bill would allow the Government, in collaboration with First Nations, to develop federal regulations for access to safe drinking water, and to ensure the effective treatment of wastewater and the protection of sources of drinking water on First Nation lands.

The bill lays out the areas that federal regulations could address, including:

• the quality of drinking water;
• the training and certification of water and wastewater system operators;
• the treatment of water and wastewater;
• the monitoring, testing, sampling and reporting; and,
• the protection of sources of drinking water located on reserve.

Provinces and territories each have their own legally binding safe drinking water standards. The federal government currently has Protocols for Safe Drinking Water for First Nations Communities, which set out clear standards for the design, operation and maintenance of drinking water systems, as well as the Procedure Manual for Safe Drinking Water in First Nations Communities South of 60°  , which isbased on the Guidelines for Canadian Drinking Water Quality (GCDWQ)  . However, there are currently no legally enforceable protections for First Nations governing drinking water and wastewater on First Nation lands.

Federal regulations to protect the quality of water on First Nation lands have been recommended by the Office of the Auditor General  , the Expert Panel on Safe Drinking Water for First Nations   and the Standing Senate Committee on Aboriginal Peoples  .

In 2009, the Government launched the National Assessment of First Nations Water and Wastewater Systems in order to conduct a detailed assessment of existing public and private water and wastewater facilities operating on First Nation lands across the country. Recommendations from the National Assessment were released on July 14, 2011, and stated the need for a water and wastewater regulatory regime on First Nation lands.

The proposed enabling legislation is similar to, but not the same as the former Bill S-11, the proposed Safe Drinking Water for First Nations Act, which died on the Order Paper in the Senate Committee when the 40th Parliament dissolved in March 2011.

Changes and improvements to the previous bill have been made to clarify the intent and scope of the bill. These changes were made based on feedback received from First Nations and Parliamentarians over the past few months. Key differences between Bill S-11 and the new proposed legislation 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.
• 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.

Subject to the proposed legislation receiving Royal Assent, the Government of Canada will work in partnership with First Nations to develop federal regulations and standards, based on the needs of each region.

Creating 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 water and wastewater infrastructure and capacity to the level required to meet future federal regulations.