Report of the Expert Panel on Safe Drinking Water for First Nations

Incorporating Provincial Water Laws in New Federal Legislation

Another possible option is to incorporate by reference provincial water laws in new federal legislation. A First Nations Water Commission could still be created and the application of the federal act could be extended to apply to Bands outside the Indian Act.

An example of this approach is the Indian Oil and Gas Act. [80] Under the Act, the Governor in Council has made regulations containing rules on the exploitation of oil and gas on reserves. Section 4(c) of the Indian Oil and Gas Regulations provides for referential incorporation of some provincial laws:

It is a condition of every contract that the operator will comply with
1. the applicable provisions of the Indian Act and any applicable orders and regulations made under that Act;
2. these Regulations and any directions made pursuant thereto; and
3. unless otherwise agreed to by the Minister and specified in the contract, all provincial laws applicable to non-Indian lands that relate to the environment or to the exploration for, or development, treatment, conservation or equitable production of, oil and gas and that are not in conflict with the Act or these Regulations. [81]

5.1 Gaps in Water Standards Province to Province

Incorporating provincial water laws by reference in new federal water legislation would eliminate any uncertainty associated with the application of provincial water law as a law of general application. However, there are gaps and varying water standards across provinces, which would lead to the undesirable result of providing some reserves with the benefits of a more elaborate regime than others. For example:

Operator certification requirements for all provinces, except Québec, are based on Association of Boards of Certification (ABC) standards. It is generally the operator-in-charge who must be certified, although some provinces also require certification of other operators. Training requirements (as distinguished from certification requirements), vary across provinces, and there is variation as to whose responsibility it is to ensure certification (the facility owner or the province).
Water treatment regulations only apply to systems of a certain minimum threshold size, which generally varies from two to fifteen connections. The applicable water quality parameters and standards are usually set out in regulation. Some provinces adopt as standards some or all of the federal Guidelines for Canadian Drinking Water Quality (which are formulated by a federal-provincial-territorial committee). Others provide only minimal microbiological or disinfection standards but set forth more specific treatment standards in individual system approvals/licences. Ontario and Québec have comprehensive treatment standards that go above and beyond the Guidelines.
All provinces retain inspection powers over water treatment facilities, and nearly all provide the director and/or provincial officers with enforcement powers, such as powers to issue orders.
Legislation in only some provinces requires that facilities prepare emergency plans, although this may be required by a system approval/licence. Similarly, there is variation as to what, if any, information must be regularly reported by facilities to the regulator (typically data logs). However, all provinces require reporting of adverse test results, which usually triggers further reporting requirements, and some also require that the laboratories conducting the test analysis to report adverse test results.
All provinces and territories require governmental approval for the design, construction and operation of water treatment facilities (although this is not a legislative requirement in Yukon).
Source protection is specifically addressed only in British Columbia, some Maritime Provinces and Québec, although Ontario and Manitoba will soon be promulgating comprehensive source protection legislation. Most other provinces protect source water through environmental laws of general application. Provincial legislation does not provide for protecting water sources that cross provincial boundaries. This is a concern for some reserves.
Wastewater treatment is generally addressed by legislation analogous to water treatment legislation.
With respect to bulk water takings, Alberta, British Columbia, Manitoba and Newfoundland have comprehensive riparian rights legislation, and Ontario requires a permit for large water takings.
Wells serving one consumer or a small number of connections are regulated in all provinces to varying degrees. Alternative water transport and storage systems, such as cisterns and water trucking, are addressed by legislation in some provinces only, and then to varying degrees of comprehensiveness.
Small septic systems are generally regulated locally and only at the building stage.
The siting, design and servicing of cisterns, septic tanks and percolation fields is inadequately covered; what guidance there is often in building codes.

Please see Appendix C for an overview of the provincial and territorial water legislation.

5.2 Need to Negotiate with Each Province

There also appears to be a general lack of political appetite amongst provinces to regulate and enforce water legislation on reserves. Importing provincial water standards into federal legislation is one issue but to have the provinces assume the inspection, investigation and enforcement roles is another more problematic one. Buy-in from the provinces would be needed. There may be some provinces willing to assume these roles while others may decline. As such, the federal government would need to engage in negotiations with each province and consult with First Nations, which could in turn lead to lengthy delays.

5.3 Potential Role for First Nations Water Commission

A First Nations Water Commission could play an instrumental role as an oversight body and could facilitate negotiations between the federal government and the provinces. Operating arms-length from INAC, the individual First Nations and the provinces, the Commission could also be responsible for channeling funds from the federal government to the provinces to cover costs incurred by the provinces for assuming these on-reserve enforcement activities.

The Commission could oversee the conduct of the provinces in regulating and enforcing their water legislation on reserves. For those provinces unwilling to assume the enforcement role, the Commission could be responsible for ensuring that there is an alternative form of adequate inspection, investigation, and enforcement in place, whether the Commission assumes these roles itself or enters into contracts with Tribal Councils or First Nations organizations for them to undertake these responsibilities.

It is important, however, that the Commission retain the role of issuing facility and operation approvals for water and wastewater facilities, as well as the power to ensure that INAC provides adequate funding to First Nations to construct and operate in accordance with approvals.

Accountability could be assisted by giving the First Nations Water Commission the power to investigate complaints arising from the conduct of any of the partners, including 1) the federal government in funding the construction and operation of the facility as well as in funding the provinces' inspection, investigation and enforcement activities on reserves, 2) the provinces in carrying out these regulatory activities on reserves, and 3) any other parties, such as Tribal Councils, that may have by contract assumed the regulatory roles.

For other legal considerations related to self-government and land claim agreements, please see Section 7.2 below.

Footnotes:

Indian Oil and Gas Act, R.S.C. 1985, c. I-7. (return to source paragraph)
Indian Oil and Gas Regulations, 1995, SOR/94-753. (return to source paragraph)

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