Question Period Note: Water and Wastewater

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

• As of June 30, 2021, more than $2.07 billion of targeted funding has been invested to support 751 water and wastewater projects, of which 408 are now complete and 343 are ongoing. These projects will serve 464,000 people in 582 First Nations communities.

• Much work remains, but the results are encouraging. First Nations, with the support from Indigenous Services Canada, have lifted 119 long term drinking water advisories to date.

Response to the Parliamentary Budget Office’s 2017 report
• The Department is reviewing the findings of the report, which recognizes that we have closed the gap in capital funding for First Nations water and wastewater systems.

• ISC has significantly increased the operations and maintenance funding provided to First Nations by almost four times since 2019-2020. Now, 100% of water and wastewater operations and maintenance costs will be covered based on the funding formula, up from 80%.

• ISC is working with First Nations partners to co-develop a long-term strategy that will chart a path for water and wastewater infrastructure on reserve beyond 2021.

• The strategy will reflect the Government’s commitment to ensure sustainable water and wastewater infrastructure on reserve, by focusing on closing infrastructure gap.

If pressed on the steps taken to address the Parliamentary Budget Office’s 2017 report
• The 2017 Parliamentary Budget Officer report on budget sufficiency for water and wastewater on reserves estimated capital investments of $3.2 billion and operations and maintenance funding of $361 million per year would be required until 2020, concluding that total historical spending (federal & others) since 2011-2012 and the planned spending announced in Budget 2016 could only cover 70% of the total investment needs.

• The Department obtained additional funding through Budgets 2017, 2018 and 2019. Between 2011-20112 and 2020-2021, Indigenous Services Canada spent $3.15 billion in capital funding on water and wastewater.

• Increased operations and maintenance funding obtained through Budget 2019 and the 2020 Fall economic Statement will increase the funding support provided to First Nations to approximately $368 million per year in 2025-2026.

If pressed on Neskantaga First Nation Water and Wastewater Treatment
• Canada is working closely with Neskantaga First Nation officials and advisors to address remaining deficiencies on the water treatment system. Investments have also been made to improve the wastewater system in the community.

• The treatment system is producing water that meets the provincial drinking water guidelines. The decision to lift the Long-term Drinking Water Advisory is for the Chief and Council to make with recommendation from the Matawa Environmental Public Health Officer.

• Canada is supporting Neskantaga’s request for a certified third party to operate their water system until the local operators become certified and are able to assume responsibility.

If pressed on long-term drinking water advisory progress
• Much work remains, but the results are encouraging. As of December 1, 2021, First Nations, with the support from Indigenous Services Canada, have lifted 119 long term drinking water advisories.

• In every community with a long-term drinking water advisory, there is an action plan in place to resolve it.

• Projects are now underway in 31 communities to resolve the remaining 43 long-term drinking water advisories, and the Government of Canada is committed to completing long-term solutions where interim solutions have been used to provide clean water to communities sooner.

If pressed on preventing long-term drinking water advisories
• 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.

• To date, through these investments, First Nations have lifted 200 short term advisories, preventing them from becoming long term.
If pressed on long-term drinking water advisories and timelines.

• The COVID-19 pandemic has extended completion timelines of infrastructure projects across the country. In some cases, this has had an effect on getting equipment and resources into communities, especially in remote and northern areas.

• Additionally, other challenges common on any infrastructure project, have impacted project timelines. These factors include manufacturing and shipping delays for parts, shortened winter road seasons, weather and contractor coordination.

• ISC 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.

If Pressed on COVID-19 and drinking water
• Environmental Public Health Officers continue to work directly with First Nations to assist them in monitoring drinking water quality, which includes providing advice and guidance from a public health perspective.

• This includes supporting the role of Community-based Water Monitors to ensure the health of their communities through the consistent monitoring of the drinking water supply and prompt notification of any unsatisfactory samples.

• Indigenous Services Canada continues to work closely with individual communities and partners to coordinate resources and keep communities safe.

If pressed on Lead in Drinking Water
• Since 2003, Indigenous Services Canada has been supporting the monitoring of drinking water for lead in First Nation 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 been 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.

If pressed on water issues other than long-term drinking water advisories
• First Nations are owners of their water and wastewater systems and are responsible for their daily operation and management.

• Indigenous Services Canada is 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.

• Indigenous Services Canada’s plan is working and the Department will continue working with First Nations to improve access to clean water on reserve.

If pressed on roles and responsibilities for safe drinking water on reserves
• Responsibility for safe drinking water on reserves is shared between First Nation communities and the Government of Canada.

• First Nations are owners of their water and wastewater systems and are responsible for their daily operation and management, including issuing or rescinding drinking water advisories in their communities and taking necessary actions.

• ISC provides advice and financial support to First Nation communities for their public water and wastewater systems and ensures that drinking water quality monitoring programs are in place.

If pressed on capital funding investments for clean drinking water in First Nations communities
• Since 2016, and until 2024, the Government of Canada has made historic commitments of over $5.2 billion to First Nations to build and repair water and wastewater infrastructure and support effective management and maintenance of water systems on reserves.

• This includes new commitments made as part of Budget 2021, wherein the Government of Canada has committed $1.043 billion over two years, starting in 2022-2023, to support water and wastewater projects.

• Budget 2021 also announced $125.2 million over four years, starting 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.

If pressed on operations and maintenance funding increases
• The Government of Canada recognizes the importance of operations and maintenance in ensuring First Nations communities have sustainable infrastructure.

• As part of Budget 2019, the Government of Canada invested $605.6 million over four years, with $184.9 million per year ongoing, to support the operations and maintenance of First Nations’ community water and wastewater assets.

• As part of the 2020 Fall Economic Statement, an additional $1.5 billion was announced, which includes $616.3 million over six years, and $114.1 million ongoing, to increase the support provided for operations and maintenance of water and wastewater infrastructure on reserves.

• These additional funds will enable an increase to 100 per cent, up from 80 per cent, of formula-based funding for operations and maintenance, and will support First Nations to better sustain the approximately 1,200 water and wastewater systems across the country.

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 so 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 Nation communities to train operators of water and wastewater systems, with the goal of skill retention in their communities.

• Annually, Indigenous Services Canada spends approximately $20 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 Nation 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 system risks
• ISC supports Annual Performance Inspections to determine the risk levels of public water and wastewater systems. Risk assessments are performed to help ensure that the systems operate effectively and that health and safety guidelines are met.

• The Department aims to increase the percentage of public systems on reserve that have low risk ratings and is working with First Nations communities to strengthen on-reserve water infrastructure, including addressing health and safety needs, supporting proper facility operation and maintenance, enhancing the training and certification of water system operators and increasing capacity.

• It takes time to improve water system infrastructure (including several years to plan, design and build a water system), and therefore the impact on system risk from the investments can seem very gradual.

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.

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 monitoring drinking water quality in all water systems, 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.

As of June 30, 2021, more than $2.07 billion of targeted funding has been invested to support 751 water and wastewater projects, including 408 that are now completed. These projects will serve 464,000 people in 582 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.

Litigation
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 current stay is in place until December 31, 2021.

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 case is in abeyance until January 31, 2022.

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 case is currently inactive as the Court has been advised of the death of the plaintiff.

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. Canada and class legal counsel for Curve Lake/Neskantaga and Tataskweyak commenced exploratory discussions and negotiations in fall 2020 to settle the two class action lawsuits. On July 29, 2021, the parties signed an agreement in principle agreeing to settle the class actions and a proposed settlement agreement was signed on September 15, 2021. The settlement agreement will provide for the dismissal of the Tataskweyak and Curve Lake safe drinking water related litigation against Canada and setsout measures designed to address impacts of harm and forward-looking investments. It also contains a release of liability for Canada.

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