Winnipeg Free Press - PRINT EDITION

'A slap in the face'

Proposed drinking water law called flawed, needs rewrite

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Indian and Northern Affairs Minister John Duncan promises to let First Nations help rewrite a proposed drinking-water law that outraged aboriginal leaders and the Liberal Opposition when it was introduced in the Senate in May.

No law governs the quality of drinking water on First Nations, so no one has the authority to set standards and enforce them -- one of the reasons almost one in five First Nations has contaminated tap water.

Former Indian and Northern Affairs minister Chuck Strahl tried to close the gaping legal hole this spring by having aboriginal Sen. Patrick Brazeau introduce the Safe Drinking Water for First Nations Act in the Senate.

But First Nations say the bill is deeply flawed because it explicitly overrides their treaty rights and could lead them to be fined for problems largely out of their control.

Liberal Sen. Tommy Banks called the bill "a slap in the face. This is arrogance beyond belief. It is astonishing that anyone would dare to present such a bill to this place."

The Assembly of First Nations was starting to plan strategy for a national public-awareness campaign against the bill when Duncan agreed to meet with regional chiefs across the country.

"Our message is we are not trying to run this... as a top-down exercise. We want to work with you. We're prepared to make changes," Duncan said after the October meetings.

"When I met with the Treaty 7 chiefs (in Alberta), for example, they came in thinking that this was a bill that they were going to oppose very strongly and they left saying, 'We can work with you constructively, and we want to make this work.' "

First Nations and federal opposition parties agree a law setting out the rules for drinking water on reserves is long overdue. Closing the regulatory gap fulfils a commitment in the government's 2006 plan of action for drinking water in First Nations.

However, Manitoba Grand Chief Ron Evans wrote Duncan in September, calling his attention to alarming wording in the draft law. It suggests new federal drinking-water regulations can override treaty rights and prevail over First Nations bylaws. The law would allow the Canadian government to force First Nations into agreements with third parties to operate First Nations water systems.

The Safe Drinking Water Foundation, chaired by former Manitoba water scientist David Schindler, also came out against the bill, which would impose inconsistent provincial guidelines on First Nations rather than setting a uniform national standard.

At the Assembly of First Nations annual meeting in Winnipeg in July, the chiefs passed a resolution urging the Canadian government to suspend discussion of the drinking-water bill until economic impacts are identified and presented to Parliament. The costs of bringing First Nations water and sewer plants up to standard will be clearer soon, once Winnipeg-based consultants report on the results of a nationwide assessment.

An adviser to First Nations said the minister assured them in October he will not make First Nations subject to new standards until he has reviewed the national engineering assessment and put in place enough funding for First Nations to meet the new standards.

First Nations have also pointed out practical problems if provincial inspectors try to enforce standards on reserve. They would have to decide who to charge for violations -- a First Nations engineer doing his best without enough money to run the water plant or the Indian and Northern Affairs officials who didn't provide enough funding?

Provincial courts don't have the power to force federal departments to appear in court.

"None of that is set in concrete," Duncan said when asked whether provincial officials would do enforcement.

The bill also gives the government the right to set water user fees for residents on social assistance, fees First Nations are afraid they'll have to pay out of their budgets.

The proposed law has been on the order paper for ongoing debate in the Senate since it resumed sitting in September. It will move to the Senate committee on aboriginal peoples and later to a House of Commons committee, which Duncan said are best suited to identifying specific problems with the draft.

The Toronto-based Forum for Leadership on Water has made sure senators in the debate know about the Free Press stories and video documentary on First Nations water woes at

On more than 100 First Nations, the tap water is unsafe to drink. See tomorrow's FYI section for the last of our three-part series on First Nations water woes.

Arm's length


Drinking water on First Nations should be regulated by an arm's-length commission with the power to call both First Nations and Ottawa to account, a government-appointed expert panel proposed four years ago.

That idea is nowhere to be found in the Harper government's proposed drinking-water law, although new Indian and Northern Affairs Minister John Duncan says he's prepared to negotiate changes.

The panel was led by former Indian and Northern Affairs deputy minister Harry Swain, who also headed a panel of the Walkerton inquiry the Ontario drinking-water catastrophe. Swain warned of a conflict of interest if the federal government both funds -- or underfunds -- water treatment on reserves and tries to regulate the resulting water quality.

Alberta First Nations estimate their water systems operate on about 40 per cent of the budget of neighbouring municipalities.

The First Nations Water Commission idea was developed after the expert panel heard a presentation by Winnipeg lawyer Merrell-Ann Phare on how to achieve safe drinking water through self-government.

The Assembly of First Nations and the Centre for Indigenous Environmental Resources that Phare runs have since expanded on the concept.

"First Nations are... extremely motivated to get to work to jointly design solutions because the needs are so dire," said National Chief Shawn Atleo.

The panel said a commission could license and inspect treatment plants and impose penalties for failure to meet standards, while providing independent comment on the adequacy of federal funding. Aboriginal water experts and government appointees jointly running the commission could do long-term planning for growing communities and distribute money from a trust fund, including during drinking-water emergencies. Because of its national scope, the fund would have better access to financial markets for construction loans than individual First Nations have.

Tribal councils that already run successful Circuit Rider training programs for water-plant operators might take over local water and sewer facilities, creating the economies of scale needed to make isolated northern treatment plants less expensive and easier to operate safely.

Duncan said he wants the new law to create a practical water-monitoring system, whether that's under the authority of Health Canada or First Nations.

The Assembly of First Nations will hold a water conference in Alberta next year to develop a national strategy for recognition of First Nations jurisdiction over water and for ensuring access to safe, adequate sources of fresh water.

Republished from the Winnipeg Free Press print edition November 12, 2010 A4

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