Water and Wastewater
The management of water resources, wastewater treatment 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 First Nations rights and jurisdiction.
Through past resolutions, the AFN has been directed to advocate for the protection of water rights and the right to be consulted and accommodated. In addition, the AFN brings forward to the attention of the government the lack of adequate capital resources, training and management capacity to address the growing backlog in First Nations infrastructure. This policy area advocates for resources to address the capacity and capital needs resulting from new wastewater effluent standards, potential regulations for water and wastewater services, and the need to develop source water protection plans to ensure protection of water supplies in the future. The AFN has also responded to the Expert Panel report recommendation to examine the viability of a First Nation Water Commission by conducting research in how such an entity might function.
Resolutions 23/2008 and 24/2008 directed the AFN to advocate for meaningful consultation on matters affecting First Nations rights with respect to water and wastewater. Resolutions 49/2008, 51/2008, 52/2008, 12/2009 and 42/2009 also provide similar direction on water rights, addressing the resource gap and the duty to consult. Resolution 50/2008 directed the AFN to start the process for the development of the framework for a Commission on Water.
Resolution 43/2010 called for the provision of adequate financial resources to each region to conduct a thorough impact analysis to determine the financial, technical, and policy development needs for each region. It also directed the AFN to urge Canada that any further discussion on Bill S-11, Safe Drinking Water for First Nations Act, be suspended until its full economic impacts are identified and presented to Parliament.
Key Issues and Activities
Bill S-11 was tabled in parliament on May 26, 2010. This bill, if enacted, will have sweeping implications for First Nations ability to govern water on reserve lands and on other First Nation owned lands. Bill S-11, does not guarantee that First Nations will have access to safe drinking water.
The AFN is calling on the federal government to engage in real action to address the capacity gap as well as working towards a regulatory regime that reflects our rights and jurisdiction and delivers equitable and guaranteed access to safe drinking water.
By introducing the bill as a health and safety issue and ignoring both the facilitator’s comments and the Expert Panel recommendation that “the federal government must close the resource gap”, it is very clear that the government has not heeded the First Nation concerns elaborated in the Impact Analyses reports and that there was not adequate consultation carried out on this matter.
The AFN has been active in meeting with senators to relay First Nations’ concerns about the provisions of this bill. Further, it has been determined that when this bill passes second reading it will be referred to the Senate Committee on Aboriginal Peoples, at which time the AFN will request time to make a presentation before the committee.
The AFN’s communications effort will continue through the development of three documents that provide supportive information, which will be tailored for and distributed to First Nations, senators and non-governmental organizations.
Impact on Rights
The legislation, if passed, has the potential to impact First Nations rights. The government has steadfastly held the view that this is not a rights issue but one of health and safety. Reviews by regional groups have identified areas where this legislation infringes on First Nations rights. Analysis of the legislation has clearly identified the objectionable clauses that must be removed or substantially changed.
Development of Regulations
Indian and Northern Affairs Canada (INAC) has been soliciting interest from regions in working with the legislation and has prepared a terms of reference for the development of federal regulations governing drinking water for On-Reserve Lands in Canada. The terms of reference contain the scope of work that a regional First Nation organization could consider in the preparation of the regional regulatory development model. Two regional organizations have passed resolutions – one to “start an exploratory exercise, on a regional level, to developing water/wastewater regulations” and the other “initiate discussions with INAC in order to explore this window of opportunity.”
In some respects this advance activity presents an opportunity for those regions to examine how they can exercise their right to manage their water resources. This work would look at the operational aspects of water and wastewater regulations and would study how the region could provide assistance to their First Nations to prepare them to move into a regulatory environment. The AFN has indicated that it will support those regions that wish to carry out these studies.
Looking-Forward Agenda to Annual General Assembly – July 2011
- Continue to advocate for resources to be provided by the government to enable regions to conduct financial, technical, legal and policy analysis of the proposed regulations.
- Convene dialogue sessions with First Nation water technicians to develop a common framework that is mutually acceptable.
- Present for approval a substantially revised Bill S-11 that respects First Nation constitutional rights.
- Examine options to support First Nation capacity including additions to the Bill relating to reports to Parliament on infrastructure and the creation of institutional capacity such as a First Nations Water Commission.