I used to sell drinking water solutions of all sizes to individuals and communities in Canada. I learned that Canadian banks don’t finance First Nations initiatives. I called them all. I finally ended up speaking with a First Nations organization who explained a lot to me and helps finance First Nations infrastructure projects. I was shocked at what I learned. I encountered numerous problems trying to help First Nations with their drinking water. The injustice and difficulty trying to help still overwhelms and shocks me today.
We don’t appreciate our water and we take it for granted. There is a serious lack of drinking water standards across Canada. Each community tests their water for different parameters even within the same health authority. Our governments don’t know how much ground water we have and not everyone has a license to extract it. We have abandoned wells which open the door for them to become contaminated. We’ve got engineers who recommend solutions that are more costly than others. The whole system is dysfunctional and at risk due to climate change. Climate change is going to have a huge impact on our drinking water.
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First Nation and Reserve Governance
Section 91(24) of the Constitution Act, 1867, grants the federal government jurisdiction over “Indians and lands reserved for the Indians”—in effect making First Nations persons wards of the state. The Indian Act, first passed in 1876 under the foregoing provision, and subsequent laws codify this jurisdiction, and govern most aspects of life on reserves, including governance. The Indian Act has been a primary instrument of Canada’s policy of colonization, a policy which, according to the Truth and Reconciliation Commission of Canada, “suppressed Aboriginal culture and languages, disrupted Aboriginal government, destroyed Aboriginal economies, and confined Aboriginal people to marginal and often unproductive land.” After nearly 150 years, the Indian Act still “renders almost all decisions made by a First Nations government subject to the approval of [INAC].”
According to the Act, a reserve is a tract of land to which the “Crown”—the Canadian government—has legal title. It is set apart for the collective use and benefit of a “band”— a group of “Indians.” Most communities prefer to use the name “First Nation” rather than band. There is no private ownership of land on reserves. Some First Nations have established their own land registry-type systems. Reserves should not be confused with traditional territory, which encompasses a much larger land area that include traditional hunting, fishing, or sacred grounds but are not within a reserve’s borders.
First Nations range in population size. Some are very small, less than a hundred people. Eighty-one First Nation reserves in Ontario have a population of 500 people or less. Several reserves in Ontario have more than 2,000 people.
According to the Indian Act, each band has its own governing band council, usually consisting of one chief councilor (chief) and several councilors. Band members choose the chief and councilors by elections. The Act requires elections to be held every two years.
The Indian Act also regulates the management of “Indian” reserve lands, “Indian” moneys, and other resources—including requiring the Minister of INAC to manage certain moneys belonging to First Nations and to approve or disallow First Nations by-laws. First Nations can determine their own membership, but only receive federal funding for members who are “status Indian.” The Indian Act defines the criteria for “status,” and INAC apportions funding accordingly for “status Indian” members living on reserves. A member can live off reserve and retain voting rights, but the First Nation will not receive funding for that member. Likewise, non-band members can live on a reserve. Non-members do not have voting rights and the First Nation will not receive funding for that resident. In addition, a First Nation is not necessarily coterminous with a reserve. Some First Nations maintain multiple reserves.
In practice, First Nations chiefs and councils are accountable to members on and off reserves, and to non-members on reserves. Their power to govern, however, is significantly limited by the far-reaching role of the federal government under the Indian Act.
Risk Scores Explained
A risk score does not directly equate to drinking water quality. The 2011 independent assessment of water and wastewater systems on First Nations reserves relied on INAC guidelines for assessing risk, which follow a “multi-barrier” approach for water management. Understood as a source-to-tap approach to water management, this approach attempts “to prevent the presence of water-borne contaminants in drinking water by ensuring effective safeguards are in place at each stage of a drinking water system.”
The assessment determined a risk score for each component of a system: source water—10 percent; system design—30 percent; operations—30 percent; records and reporting—10 percent; and operator training and experience—20 percent. An overall system risk is determined by combining these individual risk scores. A high overall risk means that there are “[m]ajor deficiencies in most of the components. Should a problem arise—for example, there is an acute contamination in the source water (a boat accident with leaking gasoline) or a power shortage—the system and management as a whole is unlikely to be able to compensate, thus there is a high probability that any problem could result in unsafe water. Issues should be addressed as soon as possible.”
The assessment report distinguishes between risk score and water quality. Drinking water advisories connote unsafe drinking water, and are likely to occur more frequently or for longer durations in high-risk systems. However, high-risk systems can produce safe water; likewise, low-risk systems can have problems that lead to a drinking water advisory.
Human Rights Watch data analysis demonstrates that systems with drinking water advisories in 2015 had a slightly higher average risk score compared with the systems that did not have advisories (6.8 to 5.8 respectively). Examining a density plot reveals that a greater proportion of the systems that had advisories were identified as very high risk.
First Nations Water and Wastewater Actors and Responsibilities
Three federal departments share responsibilities with First Nations for safe drinking water and sanitation on reserve.
- Indigenous and Northern Affairs Canada (INAC) provides capital funding and advice for design and construction of water and sanitation systems. The department funds training for First Nations staff, including water operators, and supports First Nations with 80 percent of operating and maintenance costs. INAC also sets non-binding water and wastewater protocols for reserves, but these are more like guidelines, and are not enforceable.
- Health Canada ensures monitoring of drinking water on reserves by verifying, reviewing, interpreting, and disseminating the results of tests carried out by a mixture of community and federal authorities, and supports First Nations in identifying water quality problems. The department provides advice on drinking water safety and sewage disposal . Health Canada also funds or delivers community-based health promotion and disease prevention programs; primary, home, and community care services; and programs to control communicable diseases and address environmental health issues.
- Environment Canada regulates wastewater discharge into federal waters and provides advice on source water protection.
- All three federal government departments review proposed water and wastewater infrastructure designs for reserves.
- In most cases, the First Nation owns, operates, and manages its water and wastewater systems, with government involvement. Except in rare cases, all funds for capital costs for systems come from the federal government. First Nations must self-fund 20 percent of operation and maintenance cost. First Nations hire water operators, mostly from their community. Since 2006, First Nations design and construct facilities in accordance with standards established by INAC and incorporated into funding agreements. The First Nation is also responsible for issuing drinking water advisories, either on the recommendation of Health Canada or, in emergency situations, on their own initiative.
Other Examples of Design Failures
Grassy Narrows First Nation’s treatment system, which INAC installed in 1993, also has design problems. According to the water operator, the system “was not designed to have enough contact time [with water disinfectants]. It’s impossible to achieve the necessary contact time.… [T]he water is unsafe as a result of poor design. [Our technical support from the tribal council] recognized that right away.” As soon as Ontario’s stricter regulations came into force after the 2000 Walkerton disaster, the Grassy Narrows system “became immediately non-compliant [with off-reserve provincial regulations] and should have been on a drinking water advisory,” according to the community’s water operator.
The community instituted a boil water advisory only in 2014 after the Council requested Ontario’s Ministry of the Environment and Climate Change (MOECC) initiate monitoring for the community’s drinking water under the province’s Drinking Water Surveillance Program, a post-Walkerton initiative. According to Health Canada, the boil water advisory was put in place due to “recent information brought to [Health Canada] re: major [water treatment plant] deficiencies.” INAC’s 2011 asset assessment noted that the system did not provide proper treatment for surface water. The community issued a state of emergency and “do not consume” advisory on the public system in August 2015, after further testing by the MOECC found high turbidity levels in the water and disinfectant by-products that have been linked to cancer.
Neskantaga First Nation, under a water advisory since 1995, has similar water treatment design failures. According to an advisor to Neskantaga First Nation’s council, “[t]he water was designed to circulate the system, instead there are three dead ends—the chlorination can’t circulate. It was put in in the 1990s, and it was a flawed system from the start.” According to the Neskantaga’s chief and council, the idea for the design came from a senior bureaucrat in INAC who told council leaders at the time, “It worked in my cottage, it should work in your community.” For Neskantaga’s council, this sort of patronizing comment demonstrates the challenge of working with INAC. “This is the systematic attitude that exists within the government,” said Chief Wayne Moonias.
Lack of an appropriate funding mechanism for First Nations—excerpt from 2011 Status Report of the Auditor General of Canada to the House of Commons
The federal government uses contribution agreements to fund the delivery of services on First Nations reserves. Through these agreements, First Nations receive a certain level of funding to provide various programs and services in their communities. We see several problems with the use of this funding mechanism for the provision of core government services. One problem is that, while the agreements state the services or actions to be provided, they do not always focus on service standards or results to be achieved.
The timing for provision of funds under contribution agreements is also problematic. Most contribution agreements must be renewed yearly. In previous audits, we found that the funds may not be available until several months into the period to be funded; one reason is that new agreements cannot be finalized until departments have reviewed documentation and confirmed that funds from the previous period were used appropriately. Consequently, First Nations must often reallocate funds from elsewhere to continue meeting community service requirements. […]
The use of contribution agreements between the federal government and First Nations may also inhibit appropriate accountability to First Nations members. It is often unclear who is accountable to First Nations members for achieving improved outcomes or specific levels of services. First Nations often cite a lack of federal funding as the main reason for inadequate services. For its part, INAC maintains that the federal government funds services to First Nations but is not responsible for the delivery or provision of these services.
Contribution agreements involve a significant reporting burden, especially for small First Nations with limited administrative capacity. Communities often have to use scarce administrative resources to respond to numerous reporting requirements stipulated in their agreements. We followed up on INAC’s efforts to reduce the reporting requirements of First Nations and found progress to date to be unsatisfactory even though the Department had taken various actions.
The use of contribution agreements to fund services for First Nations communities has also led to uncertainty about funding levels. Statutory programs such as land claim agreements must be fully funded, but this is not the case for services provided through contribution agreements. Accordingly, it is not certain whether funding levels provided to First Nations in one year will be available the following year. This situation creates a level of uncertainty for First Nations and makes long-term planning difficult. In contrast, legislation may commit the federal government to provide statutory funding to meet defined levels of service. A legislative base including statutory funding could remove the uncertainty that results when funding for services depends on the availability of resources.
How does the cost of drinking water on reserves stack up?
Providing safe drinking water and sanitation can be costly, particularly when factoring in remoteness or small sizes of communities. But the high price tag for water and wastewater on reserves is not inconsistent with what it costs off reserve. For example, Toronto Water distributes clean drinking water to 3.4 million residents and businesses in the city of Toronto and portions of the York region, and provides wastewater services to 2.8 million residents. The 2015 recommended operating budget for Toronto Water was $422.45 million, on top of $782.40 million allocated towards a projected $11.04 billion capital plan budget. An additional $658.2 million was allocated as a capital reserve contribution.
First Line of Defense: Protecting Water Operators on First Nations Reserves
Canada’s investment in water and wastewater on reserves extends to the training and retention of First Nations water technicians and operators. While this report does not constitute an audit of Health Canada and INAC’s efforts regarding water operators, Human Rights Watch did speak with water and wastewater operators on reserves about operation and maintenance, monitoring water quality, training, and certification. The operators also discussed procedures for issuing emergency water advisories. Operators are the first line of defense against water and sanitation disasters. To ensure success in efforts to build capacity of operators, there needs to be more equipment-specific training and greater attention to operator health and safety, including mental health and stress levels.
Operators told Human Rights Watch that they noted improvements in training and certification programs and the technical support received through tribal councils. However, many operators told us that they still lacked training, especially on the specific equipment they used. A highly skilled technician working on a sophisticated reserve system noted that she and her staff never received formal training on a new piece of equipment. “We would get something by trial and error,” she said. This operator, an engineer by training, had education and training to fill in the gaps. But many water operators on reserves have limited formal education and training, and virtually no support. As one operator explained, “[There is] nothing there to tell you how to operate.… My basic job is to get water from the lake to the houses, and that’s it.…I’d like to do something [more], but I can’t.…They don’t teach us how to operate [the systems].” Wilfred S., the water operator in Neskantaga First Nation, told Human Rights Watch that on his first day taking over the system, he was just given the key to the plant. He stood in front of a diagram of the piped system and tried to make sense of it, and studied a handbook on the system. “I learned by myself, by the book,” he said. “I had to follow the book the first time [I started running the system.]” Larry K., Sr., an operator in Grassy Narrows First Nation, had a similar experience. “I was handed over the keys.…The training came a year later.”
Wilfred has been the operator for over nine years, and has now received more training. With that comes knowledge of the limitations of what operators can do without further training. For example, Wilfred knows that cleaning the distribution lines would help some with the water quality issues in Neskantaga First Nation: “I know what has to be done,” he says, but he does not have the training or tools to do it.
This lack of training can be a health and safety concern for operators. In Shoal Lake 40, the former operator explained that he did not know when he started working about the health risks associated with the treatment chemicals. “Now we know how volatile the chemicals are that we use,” he said. “The main thing is chlorine… I should have rubber gloves, a face shield, apron.” He has received more technical support through his tribal council, but even so lacks funding to implement the safety measures. “I bring glasses, no face shield. It’s expensive,” he said.
All of the operators Human Rights Watch spoke to expressed that they felt over-worked and under-supported. Most worked very long hours. Without enough trained back-up technicians in the communities, some were unable to take any days of leave. They expressed frustration at their inability to solve their communities’ water issues, and felt immense pressure to keep the water safe for their families and friends to drink.