Unsafe drinking water and waste water systems pose a severe risk to our citizens, undermining the overall wellness of our communities. 84% of water treatment plants are at high or medium risk in First Nation communities in Ontario. The Ontario First Nations Technical Services Corporation estimates that it will cost approximately $228 – $296 million to upgrade the 158 existing water treatment plants. Many factors contribute to the prevalence of unsafe drinking water in our communities, such as a lack of resourcing to upkeep or build necessary infrastructure, inadequate disinfection systems, and contamination from industrial activities.

Additionally the National Assessments of First Nations Water and Wastewater systems in First Nation communities (released June 2011) reported First Nation communities in Ontario region are exposed to immediate health risks associated with the conditions of water and wastewater with 72% of the water treatment plants at high risk, 61% percent at medium risk and 25% are at low risk. These numbers are unacceptable and the health risks will not disappear with the establishment of legislative standards alone. Clearly, there is a need for immediate action on infrastructure and capacity needs in First Nations communities.

Currently, government response to this crisis has been to unilaterally introduce legislation to impose regulations for water systems without any resourcing (titled Bill S-8: Safe Drinking Water for First Nations, formerly Bill S-11). The proposed legislation would establish regulations for delivering clean drinking water in First Nations communities, but provides no funding to meet such standards. Concerns regarding the proposed legislation include:

• Standards will be imposed on First Nations communities that they cannot meet due to the lack of money available to develop adequate water infrastructure;

• Government will be able to impose regulations, without input from First Nations that would trump water laws or by-laws in First Nations communities and infringe on First Nations’ inherent right to manage the waters and natural resources of our territories;

• Responsibility to provide clean drinking water will be shifted away from government making First Nations legally responsible if they fail to provide water at the level required by the regulation the government itself imposed;

• First Nations, because of the above, may be forced into agreements with third party managers if they are unable to meet the regulations.

In light of these concerns, a number of initiatives have been undertaken. The Chiefs of Ontario commissioned a “Constitutional and Treaty Analysis of S-11” that outlined the issues and offered recommendations. A presentation was made to the Standing Committee on Aboriginal Affairs addressing concerns over the lack of consultation regarding the Bill, First Nations jurisdiction over the waters, and Treaty rights to the waters.

The Chiefs of Ontario commissioned several reports investigating various aspects of the framework included in the proposed legislation:

• An “Impact Analysis” on INAC’s preferred option of incorporation by reference , and a discussion of compliance, design approvals, monitoring, reporting and certification.
• A legal “Aboriginal Water Rights Primer” produced in collaboration with other First Nation organizations outlining relevant histories, rights that may exist today, the protection of rights, the ‘infringement test’ and crown decisions.
• A report, “An Analysis of the Potential Impacts of the Federal Proposal for New Federal Drinking Water Legislation to be Applied to First Nations Reserve Lands in Ontario”, that discusses issues pertaining to First Nations and Treaty rights, consultation, and recommendations for next steps.