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While all provinces and territories have laws governing drinking water and wastewater management, there is no regulatory regime governing the same on First Nation lands. The Safe Drinking Water for First Nations Act (the Act), which came into force on November 1, 2013, allows for the development of federal regulations to close this regulatory gap so that residents on First Nation lands have comparable levels of health and safety protections for drinking water as other Canadians.
Subsections 5(3) and 5(4) of the Act allow for regulations made under this Act to incorporate by reference laws of the province/territory, with adaptations to address the realities on First Nation lands. One set of regulations will be developed for each region, to harmonize as much as possible with each province's/territories' specific mechanisms for regulating water and wastewater.
The purpose of this summary is to present the 11 essential regulatory components under the Act. These components have been identified by AANDC, Health Canada, and the Department of Justice as essential to meeting the Act's objective of protecting public health. The summary maps the 11 essential regulatory components against relevant provincial/territorial acts and regulations. These acts and regulations are under consideration for incorporation into federal regulations to be made under the Act. Feedback provided by First Nation leadership, their technical experts, and other stakeholders on this summary will help inform the drafting of federal regulations for the relevant region.
This summary has been prepared by a third party. It does not represent the Government of Canada's official position on the content of federal regulations to be developed under the Safe Drinking Water for First Nations Act, nor does it represent any position of the provincial government.
Similarly, in no way should this summary be relied on as constituting legal advice of the Government of Canada, nor does it provide a complete description of the content of the province's drinking water and wastewater regulatory regime. Any errors or inaccuracies are not intentional, and the Government of Canada is not responsible for anything resulting from the reader's use of, or reliance on, these materials.
Sources of drinking water need to be protected from contamination. Drinking-water sources in particular need to be protected with the view to protecting human health. Regulatory requirements must protect sources of drinking water from potential sources of contamination, such as requiring minimum distances between wells and septic systems.
The Groundwater Catchment Regulation states that animal wastes, farm compost, mineral fertilizers, and fertilizing waste substances are prohibited within 30 metres of groundwater catchment works intended to supply drinking water. Spring water, mineral water, and groundwater catchment sites are subject to special protections, including installation of safety fences. Animal wastes, farm compost, mineral fertilizers, and fertilizing waste substances are prohibited within 30 metres of groundwater catchment works intended to supply drinking water.
Drinking water systems need to be located, designed, constructed, modified, maintained, and operated in accordance with applicable standards so that the drinking water they produce is safe, clean, and reliable. The same principle applies to wastewater systems. Wastewater needs to be treated effectively. These requirements are typically detailed in permits, sometimes known as approvals. All provincial and territorial governments in Canada require some form of permit for drinking water and wastewater systems.
The Environment Quality Act requires that the design, construction, and operation of all wastewater treatment and water supply systems be approved by the Minister of Sustainable Development, Environment and Parks.
The Groundwater Catchment Regulation governs the construction and maintenance of wells.
The Regulation respecting municipal wastewater treatment works governs municipal sewer systems.
The Regulation respecting the application of section 32 of the Environment Quality Act governs the design, construction, and operation of municipal wastewater treatment and water supply systems.
The Regulation Respecting the Quality of Drinking Water governs drinking water systems. These have quality standards and monitoring requirements. Chapter III, Division I, of the Regulation Respecting the Quality of Drinking Water (RRQ 2012, c. Q-2, r 40), Water Supplied by Distribution Systems, does not apply to a system that supplies 20 persons or less, one or more enterprises, or 20 persons or less and one or more enterprises.
The Regulation respecting waste water disposal systems for isolated dwellings governs septic systems for individual service.
The Regulation respecting waterworks and sewer services requires that construction of waterworks and sewer equipment must comply with the plans and specifications in the authorization issued by the Minister of Sustainable Development, Environment and Parks under section 32 of the Environment Quality Act.
In rural, low-density areas, distribution of drinking water can occur by tanker truck and stored in tanks or cisterns. Similarly, sewage removal by tanker truck from household holding tanks and delivery to treatment facilities may also occur. First Nation communities are often small, remote, and rural and sometimes use these systems. These types of delivery and removal systems may also be used if there is a disruption in normal operations. Regulations will allow for the development of enforceable standards for the construction, operation, and maintenance of equipment associated with bulk transport of drinking water and wastewater.
The Regulation Respecting the Quality of Drinking Water requires that drinking water delivered by tank truck to more than 20 persons be of the same quality as that supplied by water systems. Turbidity control, and chlorinated water standards of the regulation do not apply water supplied by a tank truck north of the 55th parallel.
The Regulation Respecting Waste Water Disposal Systems for Isolated Dwelling provides standards for hauled sewage systems.
Those responsible for the day-to-day operation and maintenance of drinking water and wastewater systems must have the appropriate training and certification. Requirements for the training and certification of operators must be included within regulations and must be proportional to the facility's complexity. Provincial and territorial certification requirements are well established in Canada and can be supported by successful training initiatives such as the Circuit Rider Training Program. Hub-models, wherein a certified operator has responsibility for operating and managing more than one system, should be allowable.
The Regulation respecting municipal wastewater treatment works requires mandatory certification of municipal water treatment plant operators.The Regulation respecting the quality of drinking water requires that all the duties relating to the operation and monitoring of a catchment, treatment or distribution facility for water intended for human consumption must be carried out by a certified person or under the supervision of a certified person. The Regulation establishes certification requirements.
Treatment standards are required to manage the risk from hazards that may compromise public health and safety. Regulations must allow for the authority to set standards for physical, chemical, biological and radiological parameters. With respect to drinking water quality, the Guidelines for Canadian Drinking Water Quality is endorsed by a federal-territorial-provincial committee and will be used as a basis for drinking-water quality standards. There will be a need to consider variations to meet local needs for some values, such as total dissolved solids, that are more aesthetic than health-based. Discussions with provinces and territories are needed to determine how the regulation of wastewater treatment standards may change in light of the recent coming into force of the Wastewater Systems Effluent Regulations (SOR/2012-139).
The Regulation Respecting Municipal Wastewater Treatment Works sets general discharge standards for municipal sewer systems. Additional discharge standards may be added in the depollution attestation.
The Regulation respecting the quality of drinking water sets treatment and distribution system requirements for systems serving more than 20 users.
Monitoring is undertaken to determine whether a system is performing at the appropriate level based on its design. For drinking water, monitoring covers water quality and treatment performance, including source water, process performance, treated water, and distribution system quality. Discussion with provinces and territories are needed to determine how the treatment, monitoring, sampling, and testing of wastewater may be influenced by the recently enacted federal Wastewater Systems Effluent Regulations (SOR/2012-139).
The Public Health Act mandates every owner of a water treatment plant that fluoridates the water it supplies to monitor the quality of the fluoridation.
Under the Groundwater Catchment Regulation, well water must be sampled between the 2nd and the 30th day after the beginning of use, and the samples must be analyzed by an accredited laboratory for total coliform bacteria, Escherichia coli bacteria, Enterococcus bacteria, arsenic, barium, chlorides, fluorides, iron, manganese, nitrates and nitrites, sodium, sulfates, and total hardness based on the calcium and magnesium content. Results must be given to the owner and sent to the minister within 10 days for bacteriological parameters and 60 days for all other parameters. The well water must comply with section 3 of the Regulation Respecting the Quality of Drinking Water.
The Regulation Respecting Municipal Wastewater Treatment Works sets general monitoring requirements for municipal sewer systems. Additional monitoring requirements may be added in the depollution attestation.
The Regulation respecting the quality of drinking water sets forth the requirements for drinking water monitoring for systems supplying more than 20 users and more than one building. Sampling should be spread equally over the specified time period, and if the number of samples is less than four, they must be collected at least seven days apart. The person in charge of a system supplying chlorinated water must sample quarterly for trihalomethanes. If a system supplies more than 5,000 persons, the person in charge must sample quarterly for pesticides and other specified organic substances. Turbidity must be sampled at least monthly. Sampling points must be located so as to test the water of the entire network. Analysis of water samples must be performed by laboratories accredited by the Minister of Sustainable Development, Environment, and Parks.
The collection, recording, and reporting of information is covered to varying degrees in provincial and territorial regulatory regimes. The collection and recording of information is required to evaluate compliance with standards. For consideration in proposed regulations is a requirement for the reporting of water quality to consumers.
The Environment Quality Act specifies record-keeping and reporting requirements for persons holding depollution attestations, which set out discharge standards to be met by wastewater treatment works.
The Public Health Act requires government departments and bodies and local municipalities to report to the appropriate public health director or to the national public health director any threats to the health of the population that come to their knowledge. The national public health program and the regional and local public health action plans must contain reporting mechanisms and a framework for the assessment of outcomes.
Under the Groundwater Catchment Regulation the person who drilled or deepened the well must prepare and provide a report to the owner; the Minister of Sustainable Development, Environment, and The Fight Against Climate Change; and the municipality certifying that the well complies with within 30 days after completion of a new well or deepening of an existing well.
The Regulation respecting municipal wastewater treatment works sets reporting requirements for municipal sewer systems, including monthly submission of monitoring data and the production of an annual report. Additional requirements may be added in the depollution attestation.
The Regulation respecting the quality of drinking water requires that an annual report on the quality of drinking water be prepared for every distribution system or a tank truck supplying more than 20 persons and at least one residence. The Regulation sets the requirements for what is to be included in the report. The record of residual disinfectant, water temperature, and pH maintained for distribution systems supplying water to 20,000 persons or less that have disinfection treatment facilities must be kept for five years and made available to the Minister. The owner of the system must send the analysis reports within 30 days of their receipt to the municipality in whose territory the treatment system is situated.
Regulation Respecting Waste Water Disposal Systems for Isolated Dwellings) requires that maintenance contracts for certain treatment systems be deposited with the municipality where the system is located, and that annual maintenance reports prepared by the person responsible for maintaining the system be provided to the owner of the system, the municipality, and the Minister for Sustainable Effluent analysis reports of tertiary treatment systems be kept for five years, and be sent to the municipality in whose territory the system is located.
The primary health hazards associated with wastewater treatment products are excreta-related pathogens, some vector-borne diseases and certain chemicals. Pathogens can survive long enough to be transmitted viably to people and some pathogens can survive long enough to multiply. Requirements for the handling, use and disposal of wastewater treatment products must be designed to protect public health and the environment. Where wastewater treatment products are used, rules are also needed.
The Environment Quality Act authorizes the Minister of Sustainable Development, Environment and Parks to issue a depollution attestation to municipalities which operate wastewater treatment works. The attestation sets out the contaminants discharged and the discharge standards prescribed by regulation or set down by the Minister for each contaminant discharged.
The Regulation Respecting Municipal Wastewater Treatment Works sets general discharge standards and monitoring and reporting requirements for municipal sewer systems. Additional discharge standards and monitoring requirements may be added in the depollution attestation.
The Regulation respecting waste water disposal systems for isolated dwellings governs the treatment and disposal of waste water, grey water and toilet effluents from isolated dwellings and prescribes discharge criteria for treated waste water.
It is in the most stressful of circumstances that clearly defined roles and responsibilities of various partners is most crucial, and a good regulatory regime will spell out this obligation to communicate potential hazards/contamination events. Communication of potential hazards is a key step in protecting those that may be in harm's way, and in the event of possible or confirmed water contamination or water-borne illness event, there will be little time for determining roles and responsibilities.
The Civil Protection Act provides protection against disasters, through mitigation measures, emergency response planning, response operations and recovery operations. The Act empowers the Government or any minister to protect human life, health or physical integrity by ordering that power and water mains be shut off in an emergency.
Anyone holding a depollution attestation under the Environment Quality Act must notify the Minister of Sustainable Development, Environment, and the Fight Against Climate Change forthwith should the accidental discharge of contaminants occur. The Environment Quality Act requires notification of accidental discharges.
The Public Health Act requires that any health or social services institution which resources have been mobilized in an emergency situation by the Minister at the request of a public health director must comply with the Minister's directives. During a health emergency, immediate access to relevant information and documents must be provided.
The Regulation respecting the quality of drinking water requires notification of the Minister of Sustainable Development, Environment and Parks and the public health director of the region when water does not comply with the standards of quality set out in the regulation.
Mechanisms for ensuring compliance with regulations, e.g. audits, inspections, monitoring by the regulator or third-party, are needed to determine if standards are met, and enforcement mechanisms are a necessary part of the regulations. Careful consideration of the most effective ways of ensuring compliance with regulations in First Nation communities will need to take place to ensure emphasis is placed on prevention, rather than penalty. Compliance issues will be handled on a case by case basis and adapted to account for the realities in First Nation communities. Where there is no immediate risk of harm, the primary focus will be on working together to achieve compliance.
An Act respecting the Ministère du développement durable, de l'environnement et des parcs allows a person authorized by the Ministry to enter on land and private domain. It is then the duty of the owner of the land to provide to the authorized person access to the land to carry research or inventories. Hindrance of an authorized person in their work is considered non-compliance and the owner of the land may be subject to a fine.
Under the Environment Quality Act the Minister has the power to amend, suspend, revoke or refuse to renew an authorization certificate. Failure to comply with this Act may result in monetary administrative penalties.
Under the Public Health Act, in the case of non-compliance with an order, the public health director may appeal to a judge of the Court of Quebec or of the municipal courts for an order enjoining the person to comply with said order. Subsequently, the judge may amend the order and grant the order if there exists a threat to public health.
Groundwater Catchment Regulation includes monetary administrative penalties and penal sanctions for offences of the regulation.
Regulation Respecting Waterworks and Sewer Services includes monetary administrative penalties and penal sanctions for offences of the regulation.
Regulation Respecting the Quality of Drinking Water includes applicable standards for water sample collection intended to check the return to compliance, monetary administrative penalties and penal sanctions
Regulation Respecting Waste Water Disposal Systems for Isolated Dwellings includes penal sanctions for offences of the regulation.
Regulations would require a mechanism for appeals. Appeal tribunals provide a mechanism to assure some checks and balances with appropriate public involvement surrounding regulatory decision-making. Appeals may be brought by the regulated community or others affected by the decisions of the regulator.
The Environment Quality Act addresses the different monetary administrative penalties and rules associated with them. It is possible to ask for a review of a decision of a person designated by the Minister within 30 days after being notified. A penalty associated with a failure to comply with the provision of a regulation made by the Government under this Act may be contested before the competent municipal court. Administrative penalty imposition may be contested before the Administrative Tribunal of Québec within 60 days.