Water and Infrastructure
First Nations right to use and manage our precious water resources derive from the Creator and sacred responsibility has been given to us to protect it. The management of water resources and the protection of source water is a right that First Nations have not relinquished through Treaties. It is a crucial and paramount requirement that First Nations be consulted and accommodated in any policy, legal and other decisions related to this precious resource. As such, the Assembly of First Nations (AFN) advocates and supports First Nations’ positions where the control and access to adequate water resources threatens their rights and jurisdiction.
In the modern context this right is recognized in the Canada Constitution Act, 1982 and affirmed in the United Nations Declaration on the Rights of Aboriginal Peoples.
Key Issues and Activities
Bill S-8, Safe Drinking Water for First Nations Act
With the dissolution of Parliament on March 26, 2011, Bill S-11, Safe Drinking Water Act for First Nations, died on the order paper only to be replaced by a slightly revised Bill S-8 on February 29, 2012. Amendments to the previous bill were the result of discussions with a selection of First Nation regional organizations.
The AFN submitted a written submission to the Senate Standing Committee on Aboriginal Peoples on May 16, 2012. In its current form Bill S-8 still does not recognize First Nation jurisdiction over matters related to water. Bill S-8 needs to clearly recognize and respect First Nation Inherent and Treaty rights, to advance innovation and deliver a critical measure of health and safety in their communities. Clean drinking water is also essential to greater economic and social development in First Nation communities.
The federal government was urged to provide resources to implement associated regulations and to bring First Nation facilities to an acceptable standard that will provide safe drinking to all First Nation communities and citizens comparable to that enjoyed by the rest of Canada.
The AFN also recommended that accommodation be provided in the legislation that will recognize those First Nations or their duly created and mandated institutions that have the capacity and capability to develop, administer and enforce their own water laws.
This Bill passed 3rd reading in the Senate on June 18, 2012. The AFN will continue advocacy and working with First Nations to ensure their rights and jurisdiction in this matter are clearly recognized and protected and that adequate resources are made available to ensure that First Nations have access to clean drinking water.
National Engineering Assessment
On July 2011, Aboriginal Affairs and Northern Development Canada (AANDC) released the results of the National Assessment of First Nations Water and Wastewater Systems. The national roll up report revealed that 39% of the drinking water systems in First Nation communities are considered “high risk” and 34% are “moderate risk”, which means 73% of the systems pose risk to First Nation citizens. The report identified a need of $4.7 billion over the next 10 years to address these factors.
The AFN welcomed the release of this long awaited report and immediately called for the federal government to work urgently with First Nations on a concrete action plan that will deliver safe drinking water and improved wastewater systems to First Nation citizens.
Resolution 74/2011 calls on the Government of Canada to develop a five-year capital plan and provide immediate and sustainable funding to address the high and medium risk water and wastewater systems. The AFN has called for a business plan to set out how the work identified in the assessment will be undertaken, but to take this has not been provided. AANDC does provide an annual First Nations Infrastructure Investment Plan (FNIIP) but this is the annual five-year capital plan compilation of the projected regional capital project from regular A-Base funding and not only does it include the projects from the additional top-up funds from recent budgets, it doesn’t address the shortfalls identified in the assessment report.
Budget 2012 provided for another $330.8 million over two years for an extension to the First Nations Water and Wastewater Action Plan.
National Indigenous Water Conference
Resolution 42/2010 directed the AFN to hold a First Nations-specific National Water Conference in Alberta to discuss current water-related issues and develop a strategic action plan aimed at the recognition of First Nation jurisdiction over water and ensuring First Nations access to safe, adequate sources for freshwater as a treaty and Aboriginal right for the preservation of health, economic and spiritual activities – now and for future generations.
Consequently, on March 5, 2012 a First Nations Water Rights Conference with the theme “Asserting our Water Rights” was delivered at the Enoch Cree Resort in Edmonton, Alberta, independent of government funding. The First Nations Water Rights conference featured speakers involved in the right to water, access and allocation. We were reminded that water is to be honoured with ceremony and respect. We were also advised to do the research needed to support our claims and to embark on a communications strategic approach.
A national water strategy was called for, to be informed by the direction from the Water Rights Conference and the work done to date on a First Nation Water Commission. A greater sustained effort involving many players in a visioning exercise, goal-setting and identification of objectives will be necessary to arrive at a draft framework for a First Nations National Water Strategy. This effort will begin with the dialogue session at the 2012 Annual General Assembly (AGA).
Immediately following that, a two-day technical water conference was provided on March 6-7, 2012. Both conferences were highly successful and well attended. Feedback was positive and post-conference evaluation called for it to be an annual event.
First Nations/Indigenous Water Commission (FNWC)
Resolution 50/2008 directed the AFN to start the process for the development of the framework for a Commission on Water and to report on the status at the 2009 AGA. Resolution 15/2007 directed the AFN to continue to investigate and seek avenues of support and funding for those First Nations that will require assistance in complying with a regulatory framework for water. If effectively conceptualized and established, a FNWC could help to move authority over water management-related decisions into First Nations’ hands.
The next identified step required to establish a FNWC is to work closely at a regional level to set up a pilot technically-oriented FNWC that can demonstrate First Nations-led management of drinking and wastewater treatment systems on-reserve. A FNWC will provide practical assistance to First Nations in managing their water systems, whether or not a regulatory framework has been created. A web portal will be developed to provide a central forum for best practices, lessons learned and full integration of a holistic approach to a community-wide approach to sustainable community practices.
It will be essential to collaborate with AANDC, Environment Canada and Health Canada to ensure that the Commission’s work is relevant to existing functions. Any collaboration with AANDC in the near future on this project should be pursued with caution to ensure that the FNWC remains a truly First Nation-governed entity.
Additional funds and other support from external sources will be required to move this forward.
Wastewater Systems Effluent Regulations
The Wastewater Systems Effluent Regulations, published on July 18, 2012, are now in force. The Regulations apply to any wastewater system, including those on First Nations lands, that:
- deposits pollutants specified in the Regulations into water frequented by fish (or a place referred to in subsection 36(3) of the Fisheries Act) AND
- is designed to collect (or actually collects) an average daily wastewater volume of 100 m3 (100,000 litres) or more during any calendar year.
The Regulations include effluent quality standards achievable through secondary treatment or equivalent, compliance timelines, and rules on monitoring and reporting.
If a wastewater system is not designed to achieve a secondary level of treatment (average CBOD ≤ 25 mg/L and average suspended solids ≤ 25 mg/L), the wastewater system owner or operator should apply to request a transitional authorization (TA). A TA is required to allow you to continue to operate while you upgrade your wastewater system to achieve secondary wastewater treatment and sets the timeline for upgrade. If the owner or operator of a wastewater system that is not at a secondary level of treatment chooses not to apply for a TA, the deposit of effluent from the wastewater system would not be in compliance with the law.
The complete Wastewater Systems Effluents Regulations can be found at http://laws-lois.justice.gc.ca/eng/regulations/SOR-2012-139/.
INITIAL IMPLEMENTATION & TIMELINES
January 1, 2013 - Initial requirements of the Regulations begin for:
- Wastewater quality and quantity monitoring
May 15, 2013 is the deadline to submit:
- The identification report for wastewater systems in operation on January 1, 2013
- The first quarterly monitoring report (if the system is subject to quarterly reporting)
February 14, 2014 is the deadline to submit:
- The first annual monitoring report (if the system is subject to annual reporting)
June 30, 2014 – Transitional authorization application deadline
- If a wastewater system is not designed to achieve a secondary level of treatment, wastewater system owners or operators may apply to Environment Canada to request time to meet the effluent quality standards.
- In their applications, which must be submitted by June 30, 2014, wastewater system owners or operators will need to describe wastewater volume and pollutants, as well as the receiving waters into which the wastewater effluent is deposited.
- Wastewater systems for which applications are approved will be required to meet the effluent quality standards by the end of 2020, 2030 or 2040, depending on where the system fits within the point system described in the Regulations.
Next Steps - Moving Forward
- Continue to work on the water and wastewater legislation to:
- Continue advocacy to ensure the principle of free, prior and informed consent is adhered to by the Government of Canada in development and implementation of legislation and associated regulations concerning drinking water in First Nation communities.
- Support and assist regional First Nation organizations towards establishing their framework for the management of their water resources, wastewater, watersheds and source water protection.
- Continue to inform the Government of Canada that the infrastructure resource gap needs to be addressed prior to implementing a water and wastewater regulatory regime.
- Follow up on the results of the National Engineering Assessment to ensure that the government is accountable in addressing the capital infrastructure needs identified by the study and a business plan is provided that will address the demand in a timely manner.
- Develop a framework for a National First Nation Water Strategy, including initiating dialogue at the 2012 AGA and planning a multi-day workshop that would include vision setting and establishing goals and objectives.
- Concurrent with the development of a National Water Strategy, continue to develop a conceptual framework on a First Nations/Indigenous Water Commission.
- Continue to establish a web portal to host an integrated Centre of Excellence to share best practices for water, wastewater, source water protection and watershed management.