SAFE DRINKING WATER FOR FIRST NATIONS ON RESERVE: BILL S-11

While I am on the subject of water, I want to explore the proposed federal legislation that is making its way through the process of the Senate and House of Commons. The Safe Drinking water legislation is the culmination of the many scandals that occurred over drinking water on reserve.  Today there are still approximately 80 reserves that are under boil water advisories.  In 2006, the federal government established an Expert Panel who reviewed the situation. Their report can be found in two volumes that explores all the issues. http://www.sdw-eps.gc.ca/rprt/index_e.asp 
Following the Experts report, the Auditor General in 2007 made further recommendations on the panel’s report. In their review of the drinking water situation in 2005 the Auditor general found that:
  • When it comes to the safety of drinking water, residents of First Nations communities do not benefit from a level of protection comparable to that of people who live off reserves. This is partly because there are no laws and regulations governing the provision of drinking water in First Nations communities, unlike other communities...
  • Despite the hundreds of millions in federal funds invested, a significant proportion of drinking water systems in First Nations communities continue to deliver drinking water whose quality or safety is at risk…
The Auditor General of Canada’s Recommendation in 2007 stated that “ INAC and Health Canada, in consultation with First Nations, should develop and implement a regulatory regime for drinking water in First Nations communities. This regime should be comparable with that in provinces and designed to protect the health and safety of First Nations people. As a minimum, this regime should deal with roles and responsibilities, water quality requirements, technical requirements, certification of systems and operators, compliance and enforcement, and public reporting requirements. http://www.oagbvg.gc.ca/internet/English/parl_cesd_200509_05_e_14952.html#ch5hd3c
 
Following all this the Federal Government drafted Bill S-11. Does it fall in line with the Auditor General’s recommendation? Will it meet the needs to First Nations or is it designed to ease the government’s conscience?
 
I am not sure how much “consultation with First Nations” actually occurred. But judging by the looks of the proposed Bill there couldn’t have been much consultation and what little there was, certainly First Nations direction and input was not followed.
 
Bill S-11 can be summed up as “the Minister(s) May pass regulations…” No where in the Bill does it talk about the powers  and role of First Nations in the provision, management and operation of drinking water on reserves in Canada. Hard to comment fully on a proposed law when everything of any substance will be in regulations that will be passed after Bill S-11 becomes law. 
 
The Act's stated objective is so First Nations residents may have access to safe drinking water and to do so an effective regulatory regime. 3 of the 14 sections of Bill S-11 give the Minister/Cabinet/Minister of Health the power to making regulations with respect to providing drinking water and the disposal of waste water, the standards for the quality of drinking water. There are no sections as to what a First Nation can do. 
 
What is alarming in the regulations that the Minister can make include things like
 
·         Give any legislative, administrative, judicial or other power on any person or body-one would assume in relation to this act, but it does not say so. So the federal government could turn over their powers to the province, or a municipality or any body the power to make legislation, or make legal decisions or administrative decisions. Indian Affairs could turn the whole issue of drinking water over to any one they want.
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·         Give any person or body the power to exercise in circumstance with specified conditions to REQUIRE a First Nation to enter into an agreement for the management of its drinking water system or waste water in cooperation with a 3rd party. First Nations can be forced into signing an agreement with a third party to get its services even if they do not want to.
 
·         That same person or body can set a fee for the use of drinking water or a waste water systems and the interest rate for late payments. For First Nations who may pay for the water and waste water systems, this will be a great change for their residents who will now have to pay their own bills and pay interest on late payments. Probably turn off the services when the bill is not paid. Rather harsh. The purpose of the act is to provide access to clean drinking water, but it seems you get access only when you can afford to pay for it.
 
·         The regulation 4(r) is perplexing. They say they can pass regulations that provide for the relationship between the regulations and aboriginal and treaty rights (protected by s. 35 of the constitution), including the extent to which the regulations may abrogate or derogate from those aboriginal and treaty rights. I have never heard of a government regulation that allows the government to abrogate or derogate an aboriginal and treaty right without going through a justification process and consultation and accommodation process. This provision is trying to allow the government to amend the constitution by a regulation. Lawyers will have fun with this one!
 
·         If an offence takes place with a regulation, the fine or term of imprisonment for the offence will be the same as the province that the First Nation is located. There is no input from First nations as to what the offence should be but are stuck with whatever the province they live in feels is reasonable.
 
·         The Government can be lazy and adopt the laws of the province and make any changes they think is necessary to that particular law.
 
·         The regulations can change from province to province and the government will say which First Nations it applies to and those that it won’t
 
·         Very interesting that the Minister in section 5 can enter into an agreement for the administration and enforcement or regulations they make with any province, corporation or other body. Same with the Minister of Health. Again, no where does it allow for a role for the First Nations to carry out this role
 
·         The regulations made will overrule any First Nation law or by law that conflicts or is inconsistent with the regulations.  
 
·         First Nations who have a treaty or self government agreement can have their name added to a Schedule to the Act and have the regulations apply and their laws would be overridden by the regulations as well. After all the years that it took First Nations to get out from under the Indian Act and the thumb of the Minister of Indian Affairs, why would anyone want to go back into such an autocratic system?
 
·         Another 3 sections of the Act are devoted to ensure that no one can sue the Crown, its employees or agents for another “Kashechewan ” type incident. Their drinking water crisis in 2005 required the community to be evacuated.  So if the government screws up in who they chose to provide water services and “bad” drinking water is consumed, they have no liability.
 

The biggest criticism I hear is that the Safe Drinking Water regulations will set up a regime that will be costly and required trained operators and other people that may not exist currently in every First Nation. The government does not have the money, or a plan on how they would work with up to 630 First Nations and countless more reserves to put in place safe drinking water and wastewater systems and how to train enough First Nations members to administer the systems. Or whether they will take the easy way out and enter into agreements with Local governments who already have the infrastructure and trained personnel in place which would definitely be more cost effective for them. 

Bill S-11 is definitely a way for First Nations to be on the outside of the provision of safe drinking water. More leaders and people need to get more vocal about Bill S-11, or it will go through the legislature as it is and First Nations will spend the next 30 years trying to get a better law to replace it and to gain back.  Sound familiar?

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