First Nations Water

Opinion by Juli Abouchar, Willms & Shier Environmental Lawyers LLP

Across the country year after year, a disproportionate number of First Nations communities have Boil Water Advisories (BWA). The number fluctuates, but as of June 13, 2008, ninety five First Nations communities across Canada were under a BWA. Many of these communities have been on BWAs for years, although BWAs are meant to be temporary measures. Most BWAs are in communities in Ontario and British Columbia, but Alberta has had its share, with 10 Alberta reserves experiencing boil water advisories.

Municipal and private water systems are subject to mandatory high standards that larger municipalities can keep up with. Many smaller and remote municipalities cannot manage the technical and organisational challenges of the regulations.

The problem is exacerbated for First Nations’ water systems which are not regulated. This regulatory gap was identified in 2005 by the Auditor General. In November 2006, the Expert Panel on Safe Drinking Water for First Nations released its report to the federal government and the Assembly of First Nations. The report identified the need for a regulatory framework together with adequate investment in human and physical assets, and proposed regulatory options.

In April of this year, the federal government announced that it would spend $330 million over the next two years on a First Nations Water and Wastewater Action Plan, including the development of clear standards and a legislative framework.

What is needed to make this legislative framework effective?

Key to its success will be the extent the framework responds to First Nations issues and concerns and has efficient and adequate funding arrangements. First Nations must feel that the feds have heard and understand their concerns, and their spiritual and cultural approach to water. Equally important will be that the water system infrastructure in all First Nations is fixed and upgraded where needed, and is sufficiently resourced to operate within compliance. Mr. Harry Swain, Chair of the Expert Panel that looked in detail at options to ensure safe drinking water on First Nations has said that the $330 million in the 2008 budget “goes a long way but is not quite enough.”

Other ingredients for a successful regulatory framework are accountability and compliance by all parties involved in the delivery of safe drinking water to First Nations communities.

The framework must be binding on all parties including the federal government whose responsibility it is to resource the systems and their operations. The framework must use inspection and enforcement to improve performance rather than to penalise those lacking capacity to perform. Ideally enforcement will incorporate a measure of flexibility to focus on training and continuous improvement. The legal framework should provide for appeals and investigation of complaints. It should build on the current Circuit Rider Training program to develop training and certification, and encourage sharing of information and success stories.

The good news is that the number of BWAs on First Nations communities is decreasing. INAC reports that in 2006 there were 193 high risk water systems in First Nations communities. They identified 21 as priorities, and have addressed fifteen of them. However many First Nations people still lack access to safe drinking water. For some there are unavoidable problems of remoteness and size that may be overcome by joint operations with neighbours or contracting out to competent larger operators.

Since Walkerton, governments have focused on regulating water, and have sought advice on how best to regulate water systems including smaller remote ones. Plenty of good ideas abound. The feds have the opportunity and momentum now to push forward and close the regulatory and infrastructure gap for First Nations water systems.

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Sources:
Drinking Water Advisories, First Nations, Inuit and Aboriginal Health, Health Canada http://www.hc-sc.gc.ca/fniah-spnia/promotion/public-publique/water-eau-eng.php
Six communities are profiled in “Boiling Point!” (Polaris Institute, Assembly of First Nations, Canadian Labour Congress, 2008)
As of February 10, 2006 http://www.cbc.ca/slowboil/BWA-February10th,2006.pdf
Drinking Water in First Nations Communities (Commissioner of Environment and Sustainable Development, 2005)
Final Report in two volumes is at http://www.eps-sdw.gc.ca/rprt/index_e.asp
http://www.ainc-inac.gc.ca/enr/wtr/pubs/sdw/sdw-eng.asp

Juli Abouchar B.Sc.,LL.M is a Partner at Willms & Shier Environmental Lawyers LLP, and is certified as a Specialist in Environmental Law by the Law Society of Upper Canada. Her environmental practice is focused on the following areas: litigation (tribunal hearings, defence of prosecutions); water law; environmental assessment and approvals; and environmental due diligence. Her aboriginal-environmental practice is focused on three main areas: the duty to consult during environmental assessment and permitting, negotiating and drafting resource related agreements, and facilitating resolution of disputes. She represents clients before environment and energy tribunals, including the Environmental Review Tribunal, Ontario Municipal Board, Ontario Energy Board, Canadian Environmental Assessment Panel and National Energy Board.

Juli is an expert water lawyer. She was Assistant Commission Counsel at the Walkerton Inquiry, served on the multi-stakeholder Source Water Protection Implementation Committee to provide advice on the Clean Water Act, and was legal advisor to the Expert Panel on Regulating Safe Drinking Water on First Nations. She advises clients on water supply agreements, source water protection policies, water system by-laws, managing drinking water systems, appealing MOE orders and defending Safe Drinking Water Act charges.