Question Period Note: Water and Wastewater

• All Canadians should have access to safe, clean, and reliable drinking water.

• As of June 30, 2022, more than $2.70 billion of targeted funding has been invested to support 965 water and wastewater projects, of which 478 are now complete and 487 are ongoing. These projects will serve 467,000 people in 587 First Nations communities.
• First Nations, with support from Indigenous Services Canada, have lifted 135 long term drinking water advisories to date.

• Initiatives are underway in 28 communities to resolve the remaining 32 advisories.

Overview of Parliamentary Budget Officer Report and Findings
On December 1, 2021, the Parliamentary Budget Officer tabled a report on budget sufficiency for water and wastewater infrastructure in First Nations communities, entitled Clean Water for First Nations: Is the Government Spending Enough? This report responds to a request by Independent Senator Renée Dupuis; it analyzes spending on water and wastewater, estimates investment needs, and compares these to actual and planned investments.
According to this report, current capital funding is more than sufficient to meet current and future water and wastewater infrastructure needs from 2016-2017 to 2025-2026. The report also concludes that the funding available for operations and maintenance from 2016-2017 to 2025-2026 will only cover two-thirds of the funding needs, with an average gap of approximately $138 million per year.
The report estimates that capital funding required to address current and future water and wastewater needs is $3.1 billion and the actual spending and planned funding is $6.35 billion, inclusive of Provincial and Territorial transfers. The report also estimates operations and maintenance needs to be $419 million per year and the actual spending and planned funding is an average of $291 million per year. As such, there is an average funding gap of $138 million per year for operations and maintenance funding.
Overview of 2021 Report by the Standing Committee on Public Accounts
In February 2021, the Office of the Auditor General (OAG) tabled a report on access to safe drinking water in First Nations communities, which put forward five recommendations for ISC to work with First Nations communities to strengthen efforts to eliminate all long-term drinking water advisories and prevent new ones from occurring. ISC developed a detailed management response and action plan on how the department was addressing the report’s recommendations.
In April 2021, the Standing Committee on Public Accounts (the Committee) reviewed the Office of the Auditor General’s audit and recommendations, as well as Indigenous Services Canada’s detailed management response and action plan. Further to this review, in June 2021, the Committee presented its own report, entitled Access to Safe Drinking Water in First Nations Communities with four recommended actions and associated deadlines. The Committee’s report was re-adopted on February 8, 2022, following the fall 2021 election. The report echoed the findings of the Auditor General’s report and recommended that Indigenous Services Canada provide the Committee with a series of reports over the coming years to report on progress related to each of the four recommended actions.
The Government Response addresses the Committee’s four recommendations and includes the four progress reports requested by the Committee, outlining current activities to-date to improve access to safe drinking water in First Nations communities. It reflects the Minister of Indigenous Services commitment to improving water infrastructure and building a sustainable foundation that ensures that First Nations communities have access to safe drinking water now and into the future. It also reflects the implementation of a historic settlement agreement resolving national class action litigation on safe drinking water in First Nations communities. The Government Response has been ratified at the Cabinet Committee on Operations and was tabled on June 9, 2022.
On June 14, 2022, the Deputy Minister appeared before the Committee to provide an account of progress since April 2021 against the Department’s detail management action plan to address the 2021 OAG audit recommendations.
Water and Wastewater Program
Indigenous Services Canada is working in full partnership with First Nation communities, including with First Nations technical advisors and leaders, to support sustainable First Nations-led approaches to ensure that on-reserve water systems are safe. This includes Technical Services Advisory Group in Alberta (TSAG), the Ontario First Nations Technical Services Corporation (OFNTSC), the Atlantic Policy Congress, and technical service delivery Hubs pilot projects in Ontario. ISC also works directly with First Nations to assist communities in verifying the monitoring of drinking water quality in all water systems at the tap, which includes providing advice and guidance about drinking water safety and wastewater disposal, and reviewing infrastructure project proposals from a public health perspective.
As part of Budget 2016, the Government of Canada committed to end all long-term drinking water advisories affecting public systems on reserve. Phase 1 of the Investing in Canada infrastructure plan supports this goal by providing an unprecedented $1.8 billion over five years for First Nation communities to significantly improve on-reserve water and wastewater infrastructure, ensure proper facility operation and maintenance, and strengthen capacity by enhancing the training of water system operators. Budget 2016 also included $141.7 million over five years in new funding to the Department to improve drinking water monitoring and testing on reserve. In addition, Budget 2017 provided $49 million over 3 years to address advisories as part of the expanded scope which added 24 long-term drinking water advisories to the Government’s commitment. Budget 2018 committed an additional $172.6 million over three years to support initiatives to accelerate, where possible, the pace of construction and renovation of affected water systems, support repairs to high-risk water systems and assist efforts to recruit, train and retain water operators. These funds will also support efforts to establish innovative First Nations-led service delivery models. Budget 2019 commits an additional $739 million over five years, beginning in 2019-20, with $184.9 million per year ongoing. This investment will support ongoing efforts to eliminate and prevent long-term drinking water advisories by funding urgent repairs to vulnerable water systems and the operation and maintenance of water systems so that First Nations communities can effectively operate and maintain their public drinking water systems.
As part of the 2020 Fall Economic Statement, an additional $1.5 billion was announced to help meet the Government’s commitment to clean drinking water in First Nations communities, including increased support for operations and maintenance of water and wastewater infrastructure on reserves, funding for water and wastewater infrastructure construction, repairs and other initiatives, and funding to continue work to lift all long-term drinking water advisories on public systems on reserves as soon as possible. Funding includes: $616.3 million over six years, and $114.1 million per year ongoing thereafter, to increase the support provided for operations and maintenance of water and wastewater infrastructure on reserves; $553.4 million to continue funding water and wastewater infrastructure on reserve to prevent future drinking water advisories from occurring; and $309.8 million to support and accelerate on-going work to lift all long-term drinking water advisories on public systems on reserves by helping to respond to project delays including those due to COVID-19.
Budget 2021 committed an additional $1.043 billion over 2 years, starting in 2022-23, to support water and wastewater projects. The funding will enable ISC to continue to support the planning, procurement, construction, and commissioning of water and wastewater minor and major capital projects for both new builds, as well as system repairs and upgrades in First Nations communities. Budget 2021 also announced $125.2 million over four years, beginning in 2022-23, and $31.3 million on-going thereafter to continue to support First Nations communities’ reliable access to clean water and help ensure the safe delivery of health and social services on reserve.
Budget 2022 committed to provide $398 million over two years, starting in 2022-23, to support community infrastructure on reserve, of which at least $247 million will be directed toward water and wastewater infrastructure. This will support the completion of water and wastewater projects to ensure the lifting of long-term drinking water advisories and short-term drinking water advisories from public systems on reserve. It will also support infrastructure projects to increase sustainable access to clean drinking water on reserve. New funding will support feasibility and design studies, and the construction, repair, or upgrade of water systems affected by a long-term or and short-term drinking water advisory, including long-term solutions.
As of June 30, 2022, more than $2.70 billion of targeted funding has been invested to support 965 water and wastewater projects, of which 478 are now complete and 487 are ongoing. These projects will serve 467,000 people in 587 First Nations communities.
It should be noted that drinking water advisories are issued to protect the public from drinking water that is potentially unsafe, or confirmed to be unsafe, based on water quality testing. Drinking water advisories are issued by First Nations in their communities and off-reserve by provincial, territorial or municipal governments.
Communities may also choose to issue a drinking water advisory as a precautionary measure, such as when there are emergency repairs in the water distribution system or if a community does not have a trained Water System Operator or Community-Based Drinking Water Quality Monitor in place. Some drinking water advisories are short-term to advise residents of a temporary water quality issue on a specific water system (e.g.: equipment failure).
The government is working closely with First Nations by providing sustainable investments, expanding delivery systems, building capacity of and retaining local water operators, as well as supporting regular monitoring and testing on all drinking water systems to prevent short-term and re-occurring advisories.

Atlantic First Nations Water Authority

The Atlantic First Nations Water Authority (“the Water Authority”) is a First Nation owned, not-for-profit organization incorporated in 2018 to manage the delivery of safe, clean drinking water and wastewater in participating First Nation communities in Atlantic Canada.
Budget 2022 committed $173.2 million over ten years (2022/23 to 2031/32) to support the implementation of a Service Delivery Transfer Agreement with the Water Authority. The Water Authority will control, operate, and maintain water and wastewater systems on reserves in up to 17 Atlantic First Nations communities.
The Water Authority is a professional utility, focused on the provision of water and wastewater services for member communities. It will not be a political organization.
The Water Authority’s service delivery model is opt-in and reflects the culmination of years of engagement with First Nation leaders, community members, water operators, technical experts, public health and educational institutions, other federal departments as well as levels of government.

First Nations Water Legislation
Ensuring lasting drinking water and wastewater infrastructure requires a modern and effective regulatory regime. The 2013 Safe Drinking Water for First Nations Act, repealed in June 2022, allowed for the development of federal regulations to ensure access to safe, clean and reliable drinking water and effective treatment of wastewater on reserve.
First Nations opposed the 2013 Safe Drinking Water for First Nations Act and consequently regulations were never developed. On December 22, 2021, the Courts approved a settlement agreement to resolve class action litigation on safe drinking water in First Nations communities.
The settlement provides compensation to First Nations and their members harmed by long-term drinking water advisories and forward-looking measures to help ensure safe drinking water for generations to come. A key forward-looking measure is Canada’s commitment to make all reasonable efforts to develop and introduce, in consultation with First Nations, new proposed water legislation by December 31, 2022.
The 2013 Safe Drinking Water for First Nations Act was repealed on June 23, 2022. ISC is working with the Assembly of First Nations and rights holders to co-develop proposed new legislation to replace the 2013 Safe Drinking Water for First Nations Act.
Safe Drinking Water Litigation
There are five court actions relating to safe drinking water on-reserve filed by First Nations against Canada: two have recently been settled/approved by the courts (Class Actions), and three are ongoing (two representative actions and the Isnardy proposed class action).

Representative Actions
There are two representative actions: one filed by 4 First Nations in Alberta (Tsuut'ina Nation, Sucker Creek First Nation, Ermineskin Cree Nation and Blood Tribe); and one filed by the Okanagan Indian Band in British Columbia.

Alberta Action
In 2014, Tsuu T’ina Nation, Sucker Creek First Nation, Ermineskin Cree Nation and Blood Tribe, with reserves located within Treaties 6, 7 and 8 territories, initiated litigation alleging that Canada created and sustained unsafe drinking water conditions on their reserves and throughout Canada. The First Nations claim declarations and damages for breach of fiduciary duty, breach of the honour of the Crown, and breaches of sections 7 and 15(1) of the Charter of Rights and Freedoms. The Assembly of First Nations has passed resolutions supporting this litigation. This action has been stayed by the Federal Court on consent of the parties since the fall of 2015. Since then, the parties have entered into “without prejudice” exploratory discussions aimed at advancing resolution of the litigation and addressing First Nation interests around drinking water infrastructure. The Alberta abeyance expires on December 30, 2022 while discussions continue to explore potential resolution, and clarify the interests of the First Nations.
Okanagan Indian Band Action
Okanagan Indian Band also filed litigation against Canada in August 2019, seeking declarations that Canada has breached its fiduciary duty, breached the honour of the Crown, violated the Charter of Rights and Freedoms, and breached its obligations under the Constitution by failing to create and sustain safe drinking water conditions on First Nations’ reserves. Canada is also engaged in exploratory discussions with the Okanagan Indian Band to advance potential resolution of their litigation. The Okanagan abeyance expires on October 31, 2022.

Class Actions
Curve Lake First Nation and Chief Emily Whetung, on her own behalf and on behalf of all members of the First Nation, filed a class action claiming that Canada has failed to address the inadequacies of their access to potable water and the resulting human consequences. On May 29, 2020, the Curve Lake First Nation amended their Statement of Claim on the class proceeding to include the Neskantaga First Nation and Chief Moonias as plaintiffs. The Plaintiffs seek declarations that Canada has breached its fiduciary duty, breached the honour of the Crown, violated the Charter of Rights and Freedoms, and breached its obligations under the Constitution by failing to address the inadequacies of their access to potable water. The Plaintiffs further seek the immediate construction of appropriate water systems; $1 billion for breaches of Charter rights; $1 billion for breaches of fiduciary duty, negligence and nuisance; and, $100 million in punitive damages.
Tataskweyak Cree Nation also filed a class action involving any First Nation band that has had a drinking water advisory lasting a year or more since 1995. The Cree Nation claims Canada breached its fiduciary duties, breached the Honour of the Crown, breached the Charter of Rights and Freedoms, the Constitution, and is liable for individual causes of action like nuisance and negligence.
Both the Curve Lake/Neskantaga action and the Tataskweyak Cree Nation actions were certified as class actions with the consent of Canada. In fall 2020, Canada (Department of Justice and ISC) engaged in exploratory discussions with the class action representative plaintiffs along with their counsel. In July 2021 an Agreement in Principle was negotiated, and on September 15, 2021, Canada entered into a Settlement Agreement signed on the basis of the Agreement in Principle. The settlement agreement provides for the dismissal of the Tataskweyak and Curve Lake safe drinking water related litigation against Canada and sets out measures designed to address impacts of harm and forward-looking investments. It also contains a release of liability for Canada. On December 22, 2021, the Federal Court and the Court of Queen’s Bench of Manitoba jointly approved the Settlement Agreement. The 60-day appeals period closed on February 21, 2022. No appeals were received during this time, marking February 22, 2022 as the Implementation Date for the Settlement Agreement. On April 13, 2022, Canada fulfilled its legal requirement to transfer compensation funds of approximately $2 billion to the Safe Drinking Water Trust. The third party settlement administrator is responsible for managing the claims process and making compensation payments from the trust to individuals and First Nation class members.

Shamattawa First Nation Proposed Class Action
On September 22, 2022, Shamattawa First Nation filed a Statement of Claim alleging that Canada breached the Charter rights of their members by failing to provide safe drinking water. This legal action follows a class action Settlement Agreement approved by the courts in December 2021, which involved Curve Lake, Tataskweyak Cree Nation, Neskantaga First Nation and their respective Chiefs. The Department of Justice is reviewing this claim.
Located in northern Manitoba, Shamattawa First Nation is home to 1,425 on the reserve and only accessible by air or winter road. A boil water advisory for the Shamattawa Public Water System was set in December 2018 and became a long-term drinking water advisory in December 2019 for approximately 160 homes and 14 community buildings. The community, with support from Indigenous Services Canada, is completing repairs to the water treatment plant and is working to resolve operational issues. A project to expand and upgrade the water treatment plant is underway and scheduled to be completed by November 2022. It is expected the community will be in a position to lift the advisory at that time.

Isnardy Proposed Class Action
Michael Daryl Isnardy (Toosey First Nation in BC), filed a proposed class action proceeding as an individual plaintiff in the Federal Court, representing Aboriginal and First Nation persons unable to consume or use water from their community water systems on First Nation reserves. The claim alleges that the Crown created, sustained and allowed unsafe drinking water conditions, and seeks declarations that Canada breached its fiduciary duty and duty of care to the community, violated sections 7 (life, liberty and security of the person) and 15(1) (equality right) of the Charter of Rights and Freedoms and, breached its obligations under paragraph 35(1) of the Constitution Act, 1982. The proposed class action proceeding was amended in August 2020 to extend representation to all First Nations people (status and non-status), Inuit and Métis people living on and off reserve. The Isnardy proposed class action is currently inactive as the Court was advised of the death of the representative plaintiff. No new representative plaintiff has been identified.

Table 1: Drinking Water Advisories (DWA) Progress Since November 2015
Region Long Term DWA (LT DWA) in effect No. of Communities affected by LT DWAs LT DWAs added since Nov. 2015 LT DWAs lifted since Nov. 2015 No. of LT DWAs Deactivated since November 2015 Short Term DWAs that have been in effect for 2-12 months Short Term Lifted DWAs that had been in effect for 2-12 months
ATL 0 0 2 7 0 1 10
QC 0 0 0 3 0 0 3
ON 23 20 35 68 3 7 67
MB 3 3 12 13 0 0 23
SK 6 5 15 20 2 2 60
AB 0 0 1 4 0 1 34
BC 0 0 2 20 0 2 31
YK 0 0 0 0 0 0 0
Total 32 28 67 135 5 13 228

Table 2: Long-term Drinking Water Advisory Status, as of October 3, 2022 Number %
LTDWAs lifted 135 81%
LTDWAs in effect: 32 XX
 Complete (lift pending) 14 8%
 Construction phase 12 8%
 Design phase 4 2%
 Feasibility study 1 1%
Total (135 lifted + 32 in effect) 167 100%

If pressed on long-term drinking water advisory progress
• Much work remains, but the results are encouraging. First Nations, with the support from Indigenous Services Canada, have lifted 228 short term advisories, preventing them from becoming long term and 135 long-term drinking water advisories to date.

• Indigenous Services Canada is also providing sustainable investments to prevent short-term advisories, expand delivery systems, build capacity of and retain local water operators, and support regular monitoring and testing.

If pressed on lifting long-term drinking water advisories by 2025
• Canada continues to collaborate with First Nations to lift all long-term drinking water advisories on public systems on reserves as quickly as possible.

• Since November 2015, 135 long-term drinking water advisories have been lifted; 32 remain in 28 First Nations. Initiatives are underway to address all remaining long-term drinking water advisories.

• Approximately 44 percent of remaining long-term drinking water advisories are expected to be lifted by the end of March 2023. Indigenous Services Canada is working with First Nations to ensure needed support is provided.

If pressed on new funding for water from Budget 2022

• Budget 2022 committed $398 million over two years, starting in 2022-23 to support community infrastructure on reserve, with at least $247 million directed toward water and wastewater infrastructure.

• This will enable the completion of water and wastewater projects to ensure the lifting of long-term and short-term drinking water advisories. It will also support infrastructure projects to increase sustainable access to clean drinking water on reserve.

• New funding will support feasibility and design studies, and the construction, repair, or upgrade of water systems, including long-term solutions.

If pressed on capital funding investments for clean drinking water in First Nations communities
• From 2016 to 2024, Canada will commit over $5.6 billion to build, repair, manage and maintain water systems on reserve.
• This includes $1.043 billion through Budget 2021 to support water and wastewater projects. $125.2 million over fours years, and $31.3 million ongoing, was committed in Budget 2021 to support First Nations communities’ reliable access to clean water.
• Budget 2022 committed $398 million, to support infrastructure, with at least $247 million for water and wastewater to continue addressing long-term drinking water advisories, and preventing new ones.

If pressed on new funding for the Atlantic First Nations Water Authority
• Budget 2022 committed to provide $173.2 million over ten years, starting in 2022-23, to support the transfer of water and wastewater services in 17 communities to the Atlantic First Nations Water Authority.
• This long-term, sustainable funding will support the Atlantic First Nations Water Authority to deliver high-quality water and wastewater services to participating First Nations.
• The Water Authority’s model supports Indigenous self-determination and accountability over how water and wastewater services and assets are being planned, prioritized, funded, managed and delivered to participating Atlantic First Nations.

If pressed on operations and maintenance funding increases
• Budget 2019 provided $605.6 million over four years, with $184.9 million ongoing, to support operations and maintenance of water and wastewater assets.
• The 2020 Fall Economic Statement announced further investments of $1.5 billion, including $616.3 million over six years, and $114.1 million ongoing, for this purpose.
• This enabled an increase to 100 percent, up from 80 percent, of formula-based funding for operations and maintenance, and will support First Nations and First Nations operators to better sustain water and wastewater systems across Canada.

If pressed on how increased operations and maintenance funding will achieve results
• Increased operations and maintenance funding will allow First Nations to improve water operator salaries and better retain qualified operators in their communities, train new operators to build water maintenance capacity, improve or maintain asset condition ratings, and ensure longer lifecycles for water assets.
• The Department will continue to support operator training and retention and will work with partners to expand capacity building and operator support for First Nations. The Department will continue to support hands-on training to operators through the Circuit Rider Training Program.

If pressed on training and certification of water operators
• Budgets 2016 and 2018 dedicated funds to First Nations communities to train operators of water and wastewater systems, with the goal of skill retention in their communities.
• Annually, Indigenous Services Canada spends approximately $24 million to support First Nations water and wastewater operator training, including funding the Circuit Rider Training Program.
• Indigenous Services Canada is working closely with First Nations communities to ensure they have the resources they need to operate water systems to ensure everyone has access to safe drinking water on reserve.

If pressed on Neskantaga First Nation Water and Wastewater Treatment
• Canada is working closely with the First Nation to address the remaining deficiencies at the new plant. Investments have been made to resolve these issues. Once they have been addressed, clearance testing is required to remove the boil water advisory .

• The treatment system is capable of producing water that meets provincial drinking water guidelines. The decision to lift the advisory lies with the Chief and Council.

• Canada is supporting Neskantaga’s request for a certified third party operator until the local operators become certified.

If pressed on repeal of the 2013 Safe Drinking Water for First Nations Act
• The Safe Drinking Water Class Action Settlement commits Canada to making all reasonable efforts to introduce legislation repealing the 2013 Safe Drinking Water for First Nations Act by March 31, 2022, and to develop and introduce replacement legislation, in consultation with First Nations, by December 31, 2022.
• Through Budget 2022, the Government reaffirmed its commitment to repeal the 2013 Act and work with First Nations to develop replacement legislation.
• On June 23, 2022, the 2013 Act was repealed through the Budget Implementation Act, 2022, No. 1.

If pressed on safe drinking water class action litigation
• On December 22, 2021, Canada approved a settlement agreement to resolve the class action litigation on safe drinking water in First Nations communities.
• The settlement provides compensation to First Nations and their members harmed by long-term drinking water advisories and forward-looking measures to help ensure safe drinking water for generations to come.
• A key forward-looking measure is Canada’s commitment to make all reasonable efforts to develop and introduce, in consultation with First Nations, new proposed water legislation by December 31, 2022.

If pressed on $6 billion to support reliable access to safe drinking water on reserve
• Canada's $6 billion commitment from the Settlement Agreement to support reliable access to safe drinking water on reserve is intended to benefit all First Nations across Canada through existing funding, including from Budget 2016 through Budget 2021.
• All Canadians should have access to safe, clean, and reliable drinking water.
• Canada continues to work with all First Nations to address water concerns. Together, we will develop sustainable, long-term solutions so that future generations do not worry about whether their drinking water is safe.

If pressed on $2 billion to compensate individuals and First Nations deprived of clean drinking water
• The Settlement Agreement includes commitments of approximately $1.5 billion in compensation for individuals and $400 million for a First Nation Economic and Cultural Restoration Fund to compensate individuals and First Nations deprived of clean drinking water.
• These commitments are available to individual and First Nation class action members across the country.
• Canada also continues to work with all First Nations to address drinking water advisories and to improve access to clean water on reserve.

If pressed on Shamattawa First Nation statement of claim

• Canada is aware that Shamattawa First Nation has filed a statement of claim at federal court related to safe drinking water.
• Canada respects the right of Indigenous groups, including Shamattawa First Nation, to seek the Court’s assistance on the important issue of safe drinking water.
• Canada is reviewing the statement of claim.
• Indigenous Services Canada continues to work closely with First Nations to help ensure everyone has access to safe drinking water in First Nations communities.

If pressed on COVID-19 and drinking water
• Indigenous Services Canada is working with communities to minimize the impact of COVID-19 on the continued provision of safe, clean drinking water.
• Indigenous Services Canada remains in contact with all communities and back-up plans are in place to support continuity of water and wastewater service provision throughout the pandemic.
• Emergency support for system operation remains available to First Nations communities, including through the Circuit Rider Training Program. As well, Operations and Maintenance funding continues to flow to First Nations communities to support effective water operations.

If pressed on short-term drinking water advisories
• Budget 2022 committed $398 million over two years, starting in 2022-23, to support community infrastructure on reserve, with at least $247 million directed toward water and wastewater infrastructure, which will support ongoing efforts to eliminate and prevent long-term drinking water advisories.
• While most of these situations are resolved quickly by the community operators, Indigenous Services Canada continues to work closely with those communities that require support.
• To date, through these investments, First Nations have lifted 224 short term advisories, preventing them from becoming long term.

If pressed on Lead in Drinking Water
• Since 2003, Indigenous Services Canada has been supporting the monitoring of drinking water for lead in First Nations community water systems south of 60 degrees parallel.
• In March 2019, Health Canada published a revised guideline for lead in drinking water. All regions have begun implementing this enhanced monitoring.
• This enhancement includes testing every drinking water fountain or cold-water tap where water is used for drinking or food preparation in children’s facilities.

• The Department continues to work with First Nations communities to sample designated taps.